CHALLENGES FACED BY INTELLECTUAL PROPERTY RIGHTS IN DIGITAL ERA

Adhila Fathima,

Chennai Dr Ambedkar government law College

INTRODUCTION

The rights solely given to the innovative discoveries of an individual or a group by the law for protecting such discoveries or creations are Intellectual Property Rights. The IP laws aim  to promote creativity and new inventions. IPR aims to safeguard the producers from misuse of their creationss and customers from getting deceived by fake products. The age of developed technology highly contributed to the promotion of Intellectual Property Rights. However a considerable amount of challenges are faced by IPR holders for enforcement of such rights. Nowadays it is getting more and more difficult to deal with the violations of IPR caused by the immensely mutated cyberspace. Some of the most frequently faced challenges in IPR are discussed in this article.

CYBERSPACE AND CHALLENGES IN COPYRIGHT PROTECTION

The original works of the creators are made, owned and shared online these days and that makes it tough to copyright those works as it is reproduced by many other users even without difference in quality. The methods like P2P file sharing, caching, deep linking are used for doing those infringements.

The rise of user generated content - User generated content (UGC) is the published content by unpaid contributors who provide to a website. For example, an Unboxing video of a new product, testimonials, reviews, etc. however the IT act provides that the user shall be liable for committing any illegal act in the user generated content. These days it has been a very common issue in the platforms like YouTube to repost original contents posted by other users without giving prior credits. 

Legally, whether the copyright is registered or not, the owner can seek various remedies for copyright infringement.

● Under section 55 of the Copyright Act, it is mentioned about the civil remedies available. Interlocutory injunction is one of the foremost civil remedies.

● In section 55 and 58, pecuniary remedies are provided. It is based on three things. 1. The profit gained by the infringer, 2. The amount of loss suffered by the owner, 3. On the basis of the conversion amount. Which means the amount addressed from the value of the article.

● Imprisonment from 3 months, not exceeding 3 years; fine upto Rs. 50,000 that may extend to Rs.200,000; seizure of property, are some of the criminal remedies.

● Under section 79 of the Information Technology Act, 2000 the User Generated Content cannot be accountable for any illegal act by users in the platform.

● If the original videos of a creator is reposted (on platforms like YouTube) without their permission, it is a copyright infringement u/s 51 of the Copyright Act, 1957. It is also a violation if an audiobook is published without the licence from the particular author. 

The complexity in determining the ownership of the works is another issue. As it has become so easy to distribute the contents by multiple users by copying it, it's hard to find the actual owner of the works who has the original right to distribute it. Owners of the expensive original contents are subjected to digital piracy due to infinite illegal downloads. Even large data can be shared to a huge amount of users within seconds. Production houses suffer losses as several movies are leaked in cyberspace even before releasing in theatres. This causes them loss of revenue and decreased motivation. 

THE MENACE OF CYBER SQUATTERS  

Cybersquatting refers to the use of already registered trademarks as domain names. Cybersquatters illegally use the domain for their websites without approval from the owner of the trademark. Some cybersquatters even try to ransom the trademark names. In simple words, domain name is the name given to the URL that is used to access web pages. It begins with ‘www.’ and then followed by a unique name and ends with the extensions like ‘.com’, ‘.net’, ‘.edu’, ‘.org’, etc. 

As most of us know, a trademark is a legally registered word or symbol to represent a company. The Registration of trademark and domain name differs from each other. While the registration of a trademark has to go through a complex process, Anyone can register a domain within an hour. It is not legal to keep the same domain name as of a trademark or a name that can be confused with a registered trademark. The oldest case of cybersquatting is that a website consisting of a domain named ‘whitehouse.com’ diverted people from the original website ‘whitehouse.gov’. In the USA, Anti Cybersquatting Consumer Protection Act 1999 is the law against this offence. India doesn't have specific legislation for Cybersquatting however, the trademark laws give protection from this. The first Cybersquatting case in India was Yahoo Inc. v. Akash Arora[7]. In this case, the court gave an injunction order to the defendant who used the trademark name of Yahoo company for their domain. Despite the fact that they used the name ‘India’ with it, the verdict was in favour of the plaintiff as it is an infringement and confusing for the users. 

IPR AND TECHNOLOGICAL ADVANCEMENTS 

Technological advancements have made positive and negative impacts on IP rights. Advanced technologies like AI have several applications in intellectual properties. AI helps in generating ideas with its numerous characteristics like reasoning, problem solving, perception, and so on. However the question ‘who owns those AI generated works’ is one of the most critical issues now. As per the IP law, the one who creates a work is the owner of the work. But when an AI creates a work by the direction of a person with his own creativity, there will be no clear answer to this question. Moreover, AI can effortlessly reproduce any original works such as images, videos, music, texts, etc. This causes violations to the copyrighted works. Like previously discussed in this article, the difficulty in identifying the real owners arises as AI can duplicate any works without the permission of the owner.

3D printing - the technology of printing three dimensional solid objects from a digital file is a 3D printing system. A CAD file (Computer Aided Design) is a digital file which helps to make a real physical object from a digital model. Due to the increasing demand of consumers for customised products this technology is widely preferred as customisation can be done in a low budget through these printers. Apart from making jewellery, accessories, toys, gadgets, etc., this 3D printing technology has wide application in the medical and aerospace industry. This invention can cause challenges for products with intellectual property rights. As the printers can enable the users to print nearly any objects, this may lead to the theft of Intellectual Properties. The size and cost of the machine is a reason that the 3D printers are not used by everyone widely. But if those printers become available to consumers at affordable prices in future, there will be chances for having a disruption in IP.Even patented products can be replicated and numerous Patent infringement will be caused.

As per Section 14(c) (i) of The Copyright Act of 1957, conversion of a three dimensional work into 2D form and vice versa will be the sole right of the creator. Thus violations caused by 3D printing can be regulated by the Act. Similarly, the CAD file itself can be a subject of copyright. Therefore the author’s copyright over the file also amounts to infringement if 3D print is created by utilising such a file.

CONCLUSION

The digital age of technological developments have contributed in many ways for IPR. However the IP rights are also posed to various challenges due to this digital age itself. Authentication of the  ownership of a copyrighted work is difficult due to the easy copying and distribution of contents. Thus enforcement of IP laws can be challenging. Moreover, deciding the jurisdiction for the cases of IP infringement in cyberspace is quite complicated. The question arises whether the jurisdiction is determined to be set in the place of infringement or where the work originated. Each country has different provisions for this issue. In the case of Wipro ltd. Vs Oushadha Chandrika Ayurvedic[8] it was held by the Madras High Court that according to section 62 of The Copyright Act 1957, it suggests an auxiliary ground for understanding the jurisdiction of the court. As per the section, a case can be filed in the court in the district where the owner of the work resides or works. However, the creators and owners shall be more cautious for protecting their works from all these troubles using some specific methods such as Digital Rights Management (DRM) technologies, Technical Protection Measures (TPM), digital watermarking, cryptography, and digital signatures.

REFERENCES

[1] Intellectual Property Rights in the Digital Age: Challenges and Solutions in the 21st Century (jul 5, 2024, 9:15 PM)https://unfoldlaw.in/intellectual-property-rights-in-digital-age/

[2] Intellectual Property Faces The Challenge Of A Digital World (jul 5, 2024, 7:18 PM)https://www.provokemedia.com/agency-playbook/sponsored/article/intellectual-property-faces-the-challenge-of-a-digital-world

[3] Intellectual Property Right in the Digital Age- Exploring New Frontiers (jul 4,2024, 8:15PM)https://www.theippress.com/2023/11/28/intellectual-property-right-in-the-digital-age-exploring-new-frontiers/

[4] Impact of AI on Intellectual Property Practices (jul 5 , 2024, 8:20 PM)https://www.freelaw.in/legalarticles/Impact-of-AI-on-Intellectual-Property-Practices

[5] Challenges for Intellectual Property Rights Protection in CyberSpace(jul 6, 2024, 5:28 PM)https://articles.manupatra.com/article-details/Challenges-for-Intellectual-Property-Rights-Protection-in-CyberSpace

[6] Cyberspace And Its Contribution In Copyright Infringement(jul 5, 2024, 4:30 PM) https://www.iiprd.com/cyberspace-and-its-contribution-in-copyright-infringement

[7] Yahoo Inc. v. Akash Arora, 1999 IIAD(DELHI)229

[8] Wipro ltd. Vs Oushadha Chandrika Ayurvedic, C.S. No. 874 of 200