INTELLECTUAL PROPERTY IN INFORMATION TECHNOLOGY

In the fast moving modern age, thousands of people are working hard to develop the latest software for the latest phones, designing microprocessors and developing latest technologies. In the 21st century, the rapid growth of the technologies has opened new avenues for people both in terms of opportunities and violation of rights. The development in the information technology sector has given rise to new forms threats and dangers to the rights of people.

The most common forms of violation that occurs in the world of information technology are

  • Unauthorized reproduction
  • Software piracy
  • Theft of data and information

To prevent the occurrence of such unauthorized activities, Intellectual Property Rights plays a vital role. Intellectual Property Rights provide incentives the creator of a work. This may be in the form of copyright, trademark and patent. Among these, Patent is important to foster technological change. Copyright is important for computer software and the Internet.

INTELLECTUAL PROPERTY PROTECTION OF SOFTWARE

Patent Protection

A patent grants monopoly for the exploitation of an invention. The holders of patent are granted the exclusive right to prevent others from using, commercializing or importing the patented products or processes. The Information Technology sector is mainly composed of softwares, web designing and data operations. New softwares are being developed every second by hard working engineers who are putting in immense effort to make use of these softwares for new innovations.

Copyright only protects the “literal expressions” and not the “ideas” behind it. To protect such softwares, patent is crucial. For software to be patented, it has to satisfy three basic components: the product or process has to be new, it must have an inventive step, it must have an industrial application, and the subject matter must be patentable. Patent protection can be granted to any field of technology without discrimination. Hence, softwares can be granted patent if they satisfy the above mentioned criteria for patentability. Granting of patent will ensure that these computer programs or softwares are protected from being copied illegally and from unauthorized use.

However, section 3(k) of The Patents Act, 1970, prohibits a mathematical or business method or a computer programme per se or algorithms from being patented as they are not inventions. In India, only when a software is attached to a hardware can it be patented, making it difficult for all softwares to be patented. However, it is pertinent that we make a distinction between a computer programme and software to encourage innovations in the IT sector.

Copyright

Under Section 2(o) of the Copyright Act, a literary work includes a computer programme. Further, under Section 13 it is stated that copyright subsists in a literary work, and thus, it would subsist in a computer programme too. Article 10 of the TRIPs also talks about computer programmes. Computer programmes have a source code and an object code which are copyrightable under the Indian Copyright Act.

HOW TO APPLY FOR COPYRIGHT FOR SOFTWARE?

  • You take the code and put it in word document or some other file. Make sure that you have the software as well.
  • Go online and navigate to the site that avails copyright registration in your region.
  • File the application for the registration. Make sure that you put every bit of information in the correct manner.
  • Attach the documents that include the word file of the code and the software setup as well with the application.
  • Submit the application after paying the proper fees associated with it.

Once your application and the subject of copyright are submitted, the rest of process is left with the department.

  • Once the department receives the application, they will check it and issue it a dairy number.
  • The creation will remain with them for 30 days to see if there are objections to it.
  • If there are no objections, the creation and the application are sent to the examiner.
  • If there are no discrepancies found, the registration will be approved.
  • Once the registration is approved, you will get the certification that your creation is copyrighted.

IPR AND DATA PROTECTION

The internet mostly consists of exchange of ideas and data. Thus, regulation of internet is extremely crucial to protect the data from unauthorized use. As soon as data is generated, there is a threat of theft from unscrupulous agents who misuse the data and pass them off as their own. All the data on the web are copyright protected as soon as they are generated and anyone using the same without authorization is liable for infringement.

IPR PROTECTION OF WEB DESIGNS

The website of a company is the primary tool through which a company’s business can be promoted online. As the world is progressing at a fast pace in terms of web commerce, the risk of copying content from the website or some of its features also increases. Copyright and trademark are the two protections that can be extended to the contents of a web.</p >

Softwares including the text-based HTML code used in websites can be protected by copyright under the Indian law. The website design can also be protected by copyright. The web may contain a number of creative content like written material, photographs, graphics, music and videos that are copyrightable under the Indian law. Even parts of this content cannot be used by anyone without authorization other than the copyright owner. Similarly, databases of the web can be protected by copyright. All the materials on the web servers are protected by copyright in the same way as works published through other medium. Therefore, materials from the internet cannot be downloaded or reproduced freely. If one wants to use any material, photograph, art work, database or any such copyrighted work then permission of the copyright owner has to be obtained.

For using any photograph on a web, permission has to be taken from the copyright owner of the photograph as well as the subject matter of the photograph.

Trademark protection can be given to business names, logos, product names, domain names and other signs used by the web. Trademark protection will regulate the unauthorized use of the protected content. Anybody using the protected content or even a part of it will be liable for infringement. Further, trademark cannot be used in a way so as to create confusion in the minds of the people as to the source of the web.

TYPES OF IPR ISSUES IN THE CYBER SPACE

i. TRADE MARK ISSUES WITH DOMAIN NAMES

Cyber Squatting

It is when a person registers a domain name, in bad faith, without having any interest in the business and then sells the domain name to the TM holder for an exorbitant amount of money. (Basically I am registering a domain name that I know someone else will want JUST so that I can sell it to them for profit).

This problem can be solved by litigation and other dispute resolution mechanisms. At the international level there is ICANN.

In India, there is no explicit legislation, and so a complainant can seek relief under the TM Act or go for the remedy of passing off.

Profit Grabbing

It is similar to cyber squatting, difference being that there is no intention to sell the domain name and there is only the intention to take advantage of it and exploit the commercial success. For both Cyber Squatting and Profit Grabbing, passing off is an available remedy and the parameters of the same were given by Lord Diplock (Erven Warnink BV v J Townend & Sons (Hull) Ltd) i.e. there should be misrepresentation by a trader in the course of the business to a prospective consumer/ ultimate consumer of the goods and services supplied by him, which is calculated to injure the business/ goodwill of the person bringing the action and causes actual damage to him. In Reckitt Colman Ltd. v Borden Inc. Lord Oliver refined the parameters given by Lord Diplock and stated that there should be goodwill, misrepresentation and damage, for passing off.

In India, under the TM Act there is a concept of identical/ deceptively similar. For the same, regards must be had to the nature of marks, degree of resemblance, nature of goods in which they are used as TM, similarity in nature and character, class of purchasers, mode of purchase and any other surrounding circumstances that may be relevant.

Typo Squatting

It is a form of cyber squatting which relies on mistakes such as typographical errors made by internet users, when inputting a website address into a web browser- mis-spelling/ minor changes are made in the domain name. In the case of Rediff Communication Ltd v Cyber Booth, the defendant made a domain name www.radiff.com and an injunction was granted against him.

Concurrent Use

Generally two people cannot use the same domain name but if they both have legitimate interests then the issue that arises is whether concurrent use with different top level domain names is okay. E.g. www.nissan.com and www.nissan.net. These are all examples of cases of cyber squatting

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ii. COPYRIGHT ISSUES WITH DOMAIN NAMES

Linking

There are two types of Linking as follows:

Surface Linking: If the link takes you to the home page.

Deep Linking: If the link takes you to any of the subsequent pages of the website.

Copyright issues would arise if without the consent of the author someone reproduces something that the author has written on a website. Infringement of copyright can be direct as well as contributory (facilitating).

Framing

Framing involves the use of hyperlinking. It is the juxtaposition of two separate web pages within the same page, within a separate frame. Frames can be used for web pages belonging to the original site, or to load pages from other sites into a customized arrangement of frames.

Caching

Caching is the process of storing data in a cache i.e. a temporary storage area. An area of the computer’s memory is devoted to temporarily storing such information. Content such as HTML pages, images, files are stored on the local hard drive to make it faster for the user to access. Caching occurs without the knowledge of the user- when I visit a website the browser pulls the files from the cache which saves the user time and lessens network traffic. Caching can be of the following types: Local caching: stored in the Hard Disk/ RAM Proxy caching: stored in the server

Right to Distribution

Under Section 107, if multiple copies are being made and sent to multiple people, the defense of fair use cannot be taken.

DEFENCES TO INFRINGEMENT:

De Minimis: The law does not care for small things i.e. the court will not consider trifling matters. This doctrine is applied by the court to avoid the resolution of trivial matters that are not worthy of judicial scrutiny.

Ignorance of infringement: Under Section 55(1) of the Copyright Act, if the defendant can show that at the date of the infringement he was not aware and had no reasonable grounds for believing that there was copyright, then the plaintiff will only be entitled to an injunction and damages payable will also be reduced.

REMEDIES FOR INFRINGEMENT

Section 55 of the Copyright Act gives civil remedies for infringement such as injunction, damages, rendering of accounts for profits.

Section 63 of the Act gives criminal remedies for infringement i.e. imprisonment, fine. (For this section to apply the person should knowingly infringe/ abet the infringement)