Online IPR Infringements and Information Technology Act 2000
Online IPR Infringements and Information Technology Act 2000
– Swapnil Balkrishna Joshi
Internet is an Angel and a Witch at the same time. We naturally don’t want our children to use Internet and whenever child start using Internet either on smart phones or computers, you become spy and start spying on your child. This is insecurity which compels you to do this as you are aware of pros and cons of Internet. It’s an ocean of evil and you want to protect your child from the evil. This is something Hippocratic, as surveilling parent willing to protect the child himself downloads songs from Songs.Pk and wide opens door for the trojens, viruses, malwares and bot attacks. He invites the crime and at the same time commits the crime under Copyright Act. Majorly mobile phones are pre-installed with social media websites such as Whatsapp, Facebook, Twitter, Instagram etc. and 95% of smartphone users of all age groups are registered users of these social media applications, which are aiding to vanish the difference between private life and social life. Young generation has become “Like Seekers” and “Like” addicted. How much “Likes” can be fetched after sharing some post on Facebook is the main concern.
Common sense in using internet is a remote concern for the internet users which knowingly or unknowingly lead to violation of Intellectual Property Laws and Information Technology Act 2000. The infringement of copyright and or trademark shall be taken into account as ‘actus reus’. An activity that transgress Moral or Civil Law.
Most vulnerable Intellectual Property Social Media is copyright violation. Section 14 of Copyright Act 1957 provides statutory definition of Copyright wherein exclusive rights of the author or owner and its ramifications are listed exhaustively. In broader sense and in general parlance Copyright means ‘An artistic, literary or musical work is a brainchild of the author, fruit of his labour and so, considered to be his property . The author or creator of such artistic, literary or musical work has exclusive right over his work. According to Section 13 Copyright shall subsist throughout India in original literary, dramatic, musical and artistic works, cinematograph films, records, architectural designs. Further by way of an amendment computer program has been included. Computer programs often referred as “Software” found place in the category of protectable elements under Section 13 of the Copyright Act. As defined in the amended provision, all forms of expressions of words, codes, expressions which are machine readable form will come under the protection of Copyright Act and it is categorized as Literary Work.
Section 51 of the Copyright Act 1957 provides for infringement of copyright. On perusal of Section 51, it becomes clear that, the infringement is, doing of any act by a person who is not authorized by the owner, which the owner is conferred to do under the provisions of the Act or permitting any place for profit for infringement of the copyright is also an infringement under the Act. The said two provisions are disjunctive in as much as that there shall be an infringement even if the acts are done which are of the owner or in the alternative the acts of permitting any place for profit. The words “any place” requires to be broadly construed so as to include the place at the webs page or internet in order to give effect to the provision to be operative in cases of newer kind of the infringements being caused at the web space. Thus the Copyright Infringement includes the online infringement and any one can sue for the infringement of copyright based on the web pages or web contents including websites & mobile Application. Kinds of online copyright infringements can be broadly categorized as
A) Plagiarism: means a piece of righting that has been copied from someone else and is presented as being your own work. This is something very common kind of Infringement and in virtual world authors barely take cognizance of such infringements. In the recent judgment of Delhi High Court in the case of Metro Tyres Ltd. Vs. The Advertising Council of India , Plaintiff published their advertisement of their new range of tyres on YouTube and competitor MRF lodged a complaint of plagiarism before the Consumer Complaints Council of Advertisement Standards Council of India. It was held by the Hon’ble Court that, “advertisements shall not be similar to any other advertiser’s earlier run advertisements in general layout, copy, slogans, visual presentations, music or sound effects, so as to suggest plagiarism”.
Plagiarism not only related to the written contents it also applicable to the photographs. Photographs are also considered as artistic work and therefore by virtue of Copyright Act, photographer has right to take appropriate legal action against the infringement of original work. In Kesari Maratha Trust v. Devidas Tularam Bagu l, the Bombay High Court held that, publication without permission of the photographer a photo taken by him by copying it from another published material is infringement of the copyright in the photograph.
the photograph. applicable Social media is hub of plagiarism, but cognizance of copyright violation is barely taken by the copyright holder.
B) Morphing: means creation of photos by modifying and missing or merging two or more pictures to create final image that is artificial or is semi-simulated by use of software. Morphing is related to offence of cyberstalking, which means stalking or following someone on internet or through a communication device to cause inconvenience or harassment, extortion or for ulterior motive. Morphing is offence punishable under Section 67A of the Information Technology Act. Orissa High Court in the case of Kalindi Charan Lenka Vs. State of Orissa , wherein obscene photos were morphed and uploaded on Facebook by creating fake profile and also transmitted on mobile phone, therefore offence was registered under Section 67A and 67 B of the Information Technology Act. It was held by the Hon’ble Court while relying upon the Supreme Court Judgment in the case of Sharat Babu Digumarti Vs. Govt. of NCT of Delhi that, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals.
C) Piracy: In the case of MySpace Inc Plaintiff, Super Cassettes filed a suit for injunction against MySpace Inc retraining copyright infringement on the ground that, MySpace has created a platform for sharing music and videos which Plaintiff have copyright. Issue of jurisdiction was raised by the Defendant. The Court held that, use of word “any place” in Section 52 (a) (ii) of the Copyright Act includes cyberspace and not just physical world.
D) Cybersquatting: means the practice of registering names, especially celebrities, well-known companies or brands as internet domain names in the hope of reselling it for profit. This a kind of Trademark Infringment. Famous Indian case of cybersquatting is Arun Jaitley Vs. Network Solutions Pvt Ltd. & Ors . The Plaintiff, Arun Jaitley, wanted to book the domain name “www.arunjaitley.com”. However, after the expiration of the domain name, the Defendants, alleged to have mala fide intentions, did not deleted the said domain but transferred it to Defendant No. 3, Portfolio Brains LLC, which was an auction site for domain names. The question before the Court was, whether permanent injunction restraining the Defendant from the use and immediate transfer of domain name www.arunjaitley.com can be awarded. It was held by the Hon’ble Delhi High Court that, the right to use personal name was considered as superior than that of the commercial right of using trade mark and thus the entitlement to use it as a trade mark or domain name was vested with the person having its personal name. the Domain names are protected under the law of passing off with a personal name being no exception. Other case of cybersquatting are i) Yahoo! Inc. vs. Akash Arora, 78 (1999) DLT 285 ii) Tata Sons Ltd. vs. Ramadasoft, Case No. D2000-1713 iii) Rediff Communication Ltd. v. Cyber booth and Anr., AIR 2000 Bom 27
Recourses Available under IT Act 2000:
Though there are remedies available under the IT Act 2000, lodging offence under the provisions of IT Act, seems to be rare phenomenon. In majority cases of online copyright and trademark infringement, victims choose to take shelter of civil remedies available under Copyright Act or Trade Marks Act.
However, the Information Technology Act provides Offences in its Chapter XI, which are as under
i) Section 43 – Penalty and Compensation for damage to computer, computer system, etc. – Illegal access, introduction of virus, denial of service, causing damage, tampering computer record – Damages upto One Crore
ii) Section 65 – Tampering with Computer Source Documents – Imprisonment upto 3 years with fine upto Rs. 2 Lakhs
iii) Section 66 – Computer Related offenses covered under Sec. 43 – Imprisonment upto 3 years with fine upto Rs. 5 Lakhs
iv) Section 66C – Punishment for identity theft – Imprisonment upto 3 years with fine upto Rs. 1 Lakh
v) Section 66D – Punishment for cheating by impersonation by using computer resource – Imprisonment upto 3 years with fine upto Rs. 5 Lakhs
Internet is ocean of information and data and its spiraling growth has become challenge for the copyright protection in terms of enforcement. Every content which is originally published on the Internet or any software created accrues copyright protection. Enormous information and its tremendous infringement and limitations to enforcement is the challenge.
Second limitation is of jurisdiction. Virtual world does not recognize boundaries. The global sharing of data and its global infringement is also jurisdictional issue to take a cognizance of the offence as well as to enforce the remedies available under the law for copyright infringement. According to Section 14 of the Copyright Act copyrigtable work should have been published in India. The copyright owner has right to take measures under Copyright Act as well as under Information Technology Act in cases of infringement copyright despite of the fact that such infringing material is uploaded from other Country by virtue of the International Conventions to which India is party. Though by way of interpretation made in Super Cassettes Industries Case cited Supra, the right to sue under Copyright Act is available but to enforcing the decree shall surely be challenging. Insufficient deterrence is absent in IT Act so far as offences concerning Intellectual Properties. Otherwise also mechanism for punishment is so weak, which makes this enactment toothless lion. In cases of cybersquatting, punishment is not provided, only measure of taking back the domain with the aid of Court is available.
Mischievous little thing in your pocket in the form of Smart Phone is the major weapon for commission of Cyber Crimes and IPR Infringements. Knowingly or unknowingly internet users are committing Cyber Crimes and its intensity is spiraling high on increase of internet users each day. In my opinion education of Cyber Laws and Social Media Protocols needs to be imparted from school level along with pre-existing Information Technology syllabus. To surmount statutory lacunas and issues, effective enforcement mechanism needs to be developed. Basic requirement in the field of Cyber Law is deterrence and the therefore the enactment and its interpretation shall be developed in such manner to constitute the statute to be proved as important weapon for trademark or copyright owners in protecting their intellectual property in online world.