INTELLECTUAL PROPERTY RIGHTS IN DIGITAL WORLD
INTRODUCTION
Intellectual property law is designed to protect the legitimate rights of those who produce original works and thus provide incentives for that work. Intellectual property is protected through laws on copyright, patents and trademarks. The word “intellect” originates from the root “intellectus” in Latin which means the power of knowing as distinguished from the power to feel. Man has own capacity to acquire knowledge and increase his knowledge bank by gathering knowledge throughout his life time. An intellectual product is nothing but the brain child of his original idea, creative thought, which forms a special kind of property known as intellectual property. The intellectual property is ownership of something intangible. A right is legally protected interest and object of the right is the thing in which the owner has interest. Intellectual property has been a relatively younger field of law compared to others. However, with technology taking over lives, it is essential that we now protect our intellectual property diligently.
Intellectual property, as the name suggests, are basically products of one’s intellect such as ideas or creations of mind which are unique to a person. In other words, they are the creative work of human intellect.[1] According to Article 2 of the Convention establishing the World Intellectual Property Organization (1967)[2], intellectual property includes:
- literary, artistic and scientific works, scientific discoveries
- performances of performing artists
- phonograms (any letter, symbol or character that represents a sound)
- broadcasts
- industrial designs
- trademarks, service marks and commercial names and designations.[3]
Intellectual property is protected by conferring certain rights to its original owner, i.e., the creator. Intellectual Property and its rights primarily fall under two categories namely Copyrights and Industrial Property. Copyrights are for literary (novels, poems, films, musical works) and artistic works (like drawings, paintings, photographs, sculptures and architectural designs). It also includes rights of performing artists like singers, actors, musicians, radio and television broadcasts etc. Copyright protection is available for a period of 50 years after the death of the author. Thus, patents, trademarks, copyrights, trade secrets etc. are collectively referred to the Intellectual property. Now, Intellectual Property includes geographical indications, protection of plant varieties, protection for semi-conductors and integrated circuits, protection of undisclosed information.
FEATURES OF INTELLECTUAL PROPERTY
- A right to intellectual property is an intangible right just like goodwill.[4]
- It is treated as a movable property.
- It is a bundle of rights. It can include right to prohibit anyone from using it, or to control reproduction of his works for a certain period of time.
- Intellectual Property Rights are negative rights because they prevent others from doing certain things.
- Intellectual Property Rights are statutory rights because they originate from statutes like the Copyright Act (1957), Patent Act (1970), Trademarks Act (1999), Design Act (2000) etc.
TYPES OF INTELLECTUAL PROPERTY RIGHTS
- Copyrights:
In India, Copyright is governed by the Copyright Act, 1957 and Copyright Rules, 2013. Copyright means an exclusive right to do or authorize the doing of certain acts in respect of any work. Internationally, Copyright is governed by the Berne convention (1886), Universal Copyright Convention (1952) and Rome Convention (1961).[5]
WORKS COVERED UNDER COPYRIGHTS:
The subject matter of copy right can be enumerated as follows:[6]
- Literary work: It includes computer programmes, tables and compilations including computer databases.
- Musical work: It means a work consisting of music and any graphical notation of such work.
- Dramatic work: It includes any piece of recitation, choreographic work or entertainment in dumb show.
- Cinematography film: It means any work of visual recording.
- Sound recording: It means a recording of sounds.
- Patents:
Invention is the subject matter for patents. To acquire patent protection, the subject matter should meet three conditions –Invention should be new, it should be innovative and it should be industrially applicable. In India, patents are governed by Patents Act, 1970 and Patent rules, 2003. Inventions, the use of which is contrary to public order or morality, a method of agriculture, process of mechanical/curative treatment, etc. are not considered under inventions.[7] The period of protection available to the holder is typically 20 years.
- Trademarks:
In India, Trademarks is governed by Trademarks Act, 1999 and Trademarks Rules 2002. Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colors.[8]Trademark protection can be refused if-
- The mark is not capable of being distinguished from other similar marks.
- The mark deceives or confuses the public, hurts religious sentiments, or contains scandalous or obscene matters.
- The shape of goods is a result of the nature of goods itself, or it is necessary to obtain a technical result, or gives a substantial value to the goods.[9]
Importance of Intellectual Property Rights in the Digital Age
All laws related to the protection of intellectual property were framed decades ago, at a time when technology had not swept our feet off. We even have advanced innovations like blockchain and artificial intelligence. Blockchain may still be in its nascent stages. However, we must not turn a blind eye to its potential to revolutionize the field of intellectual property. Today, especially after the pandemic lockdown, it can be rightly said that all activities of humankind from business to education has shifted to the digital mode. Thus, it is relevant to analyze how the need for protection of intellectual property has changed overtime. However, prior to that, it is essential to understand the link between intellectual property and economic benefits through the perusal of the theories of Intellectual Property. These are as follows:
1)Utilitarian Theory: Utilitarian theory, also known as Incentive theory rests on the principle of “the greatest good for the greatest number”. The intellectual works created has a beneficial effect on the society. Therefore, it is essential to ensure that the creators stay motivated to work further on creations and contribute to industrial progress. The monopoly rights act as an incentive to invent and innovate.
2) Lockean Approach: Also known as Natural Rights Theory, it states that one has the right to the fruits of his own intellectual labour. The works created is unique to himself. Therefore, monopoly is granted to the owner so that he enjoys exclusive rights over his creations. However, an exception exists in cases where it is in the larger interest of the society that he forgoes his monopoly rights. The best example would be the vaccines for Covid-19.
3)Personhood theory: The work created is essentially a reflection of the creator. Therefore, it requires to be protected.[10]
In Google LLC. v. Oracle, America, Inc,[11]Google was accused of copying more than 11,000 lines of computer code for its Android Operating System.
In Perfect 10 v. Google Inc,[12] the mere display of thumbnails by Google was held to be a copyright infringement.
In Jagran Prakashan Limited vs. Telegram Fz LLC & Ors (2020), the circulation of e-newspapers freely through online messaging platforms was held to be a copyright infringement. Over the recent years, OTT platforms have gained prominence. The lockdown due to the pandemic accelerated its growth. With movie theatres losing its charm due to threat of virus, movies are being released directly to the OTT platforms.
Ways for Protection of Digital/Intellectual Property
Digital Rights Management (DRM) technologies (also known as Electronic Rights Management Systems) ensure copyright through identifying and protecting the content, controlling access of the work, protecting the integrity of the work and ensuring payment for the access. DRM technologies prevent illegal users in accessing the content. Access is protected through user ID and password, licensing agreements. Another way to protect digital content is through Technical Protection Measures (TPM). If an author wishes to collect fee for use of his or her work, then DRM technology can be used. The TPM and DRM technologies are increasingly employed to sell and distribute content over the Internet.
Cryptography: Cryptography is the oldest mechanism employed to ensure security and privacy of information over networks. This involves scrambling (or encryption) of the information to render it unreadable or not understandable language, which only the legitimate user can unscramble (or decrypt).
Digital Watermark Technology: A digital watermark is a digital signal or pattern inserted into a digital document. It is similar to the electronic on-screen logo used by TV channels. The message might contain information regarding ownership, sender, recipient etc or information about copyright permission. The legal user can remove these watermarks with a predetermined algorithm.
CONCLUSION
A number of issues are associated with the usage of digital information i.e. issue of single articles versus full issues of e-journals, user-friendliness, incompatible hardware and software, formatting, graphics, scholarly recognition and obsolescence. In digital environment it is difficult to draw a boundary line between what is permissible, to what extent and what is infringement. In the context of digital information, it is difficult to judge, comprehend fair use, access and control the infringement of copyright law. It is almost impossible for a copyright owner to know which person used his/her work. In this context it is necessary to modify the copyright law.
Credits - S. Janani
1.VK Ahuja, Intellectual Property Rights In India, (Lexis Nexis, 2015) ↑
2.Also known as the WIPO Convention as it leads to the establishment of World Intellectual Property Organization (WIPO) in 1967. The organization aims to promote protection of intellectual property across the countries by achieving cooperation among different states and international organizations. ↑
3.WIPO Convention, Article 2 ↑
4.VK Ahuja, Supra ↑
5.Elizabeth Varkey, Intellectual Property Rights And Practice, (EBC 2015) ↑
6.Copyrights Act, Section 14, Act of Parliament,1957 (India) ↑
7.Patents Act, Section 3, Act of Parliament,1970 (India) ↑
8.Trademarks Act, Section 2(zb), Act of Parlaiment,1999 (India) ↑
9.Trademarks Act, Supra, Section 9 ↑
10.Elizabeth Varkey, Supra ↑
11.Google LLC V. Oracle America, Inc 593 U.S Perfect 10, Inc. V. Amazon Inc. ↑
12.Perfect 10, Inc V. Google Inc, 508 F.3d 1146 ↑
