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CYBERCRIMES IN THE DOMAIN OF IPR

By Ishita Sharma and Rishabh Moon (Research and Editorial Team)

April 2022-02

 

 

ABSTRACT

The advancement of the tech-space and internet has led to the expansion of businesses and encouraged the growth of intellectual property. Unfortunately, it has paved a way for cyber-crimes prevailing in the field of Intellectual Property. This may include crimes like software piracy, copyright infringement, trademark violation, patent violation, cybersquatting, etc. Intellectual Property Rights are legal rights introduced for the protection of the creations and inventions of intangible assets. 

This article aims towards analysing the prevalent cybercrimes in the area of IPR and the problems faced in tackling those crimes. This article will further discuss the Scope of Indian Laws to address these crimes in IPR. 

 

INTRODUCTION

The rise in technology has contributed to the easement of carrying out business. The advancement of technology has composed a strong effect on the growth of businesses all around the world. The internet is an essential element in escalating the growth of small-scale businesses. This has been possible because the internet is feasible to utilize without any limitation and is easily available to be accessed from any jurisdiction. The issue of jurisdiction in cyberspace is one of the reasons for the increasing cybercrime. 

Cybercrime is a criminal activity carried out with the aid of a computer or any electronic device linked to the internet. The Indian Government introduced the Information Technology Act, 2000 provides legal recognition given the group action done via electronic sharing of information and alternative electronic suggests that of communication or electronic commerce transactions. 

 

INTELLECTUAL PROPERTY

Intellectual Property Rights (IPRs) are legal rights that protect creations and/or inventions resulting from intellectual activity in the industrial, scientific, literary, or artistic fields. The most common IPRs include patents, copyrights, marks, and trade secrets

Although a few of the legal principles governing IP and IPR have advanced over centuries, it was not until the nineteenth century that the term intellectual property commenced for use and not until the late twentieth century that it had become not unusual with the majority of the world. In simpler words, Intellectual property is the product of innovation. 

Intellectual property is a large specific description for the set of intangible property owned and legally covered via way of means of an agency or any person from outside use or implementation without consent of the creator. An intangible asset is a non-bodily asset that an agency or individual owns. 

Most developed economies have come up with legal solutions to protect intellectual property. Products of human creativity shall be protected the same as any physical property. Intellectual Property Rights provides the owner of the property with the capacity to limit anyone from replicating or taking advantage of their work.   

 

CYBERCRIMES IN THE AREA OF IPR

  • COPYRIGHT INFRINGEMENT

The internet has given space to various artists, creators, musicians, writers, and other copyright holders to express themselves through their content and display their art to the whole world. Even though these copyright holders are working globally to expand their growth and make the data accessible to millions of people, it does come with a huge drawback of duplicating their information and claiming somebody else’s work as their own, also known as copyright infringement. A copyright is an exclusive right of the owner to protect their work from getting exploited. Copyright is violated when any person without the permission or approval of the original owner under the Copyright Act, 1975 does something which only the exclusive owner is allowed to do.

The liability for copyright infringement lies on the owner of the property or the first person to post the copyrighted information on the web regarding requisite knowledge and intention (of committing the crime) to be present. 

The Penal Code 1860 has the right to punish the publication of copyrighted work as the offence of forgery. In India, the offence of Copyright infringements is pursued under section 63 of the Copyright Act, 1957 ‘whereby any person who knowingly infringes or abets it shall be punishable for a term not less than 6 months extendable up to 3 years with fine, not less than rupees 50,000.

 

TRADEMARK AND DOMAIN 

The Trademark Act, 1999 defines the term as, “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”

A domain name may constitute a trademark if used for the purposes of identifying the source of goods or services. A domain name is the most elucidating aspect of accessing a website. A domain name can be called an identifier of individual identity on the internet. Cybersquatting is another violation of trademark laws. It happens when a person uses a domain name without any registration or inherent rights to the name. These individuals signup trademarks for domain names and then sell those domain names to individuals at a higher value in order to make a profit. The creators highly value these domain names because they play a vital role in any business. ‘A domain name registrant doesn’t obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement’

The concept of ‘reverse cybersquatting’ is also another rising problem in the field of IPR. This happens when a trademark owner tries to take up a domain name by putting false cybersquatting allegations on the rightful owner of the domain. Even though the complexity of the situation requires strict laws to protect the rightful owner of any domain name, there are no specific rules to restrict the violation of these rights. 

 

ISSUES FACED IN TACKLING CYBERCRIMES

One of the main reasons for the arising issues in tackling cybercrimes in IPR is negligence. There is a lack of awareness for IPRs, deprivation of enough regulations, and a lack of efficient application of these regulations. There are extensive violations of regulations due to inefficient enforcement of rights. There is also a concept of ‘territorial jurisdiction’ which is complex because of the non-physical domain of the internet. Furthermore, any process of law enforcement becomes even more complicated when the case of an international transaction is introduced. 

Another notable issue is that there are no legal consequences for cyber squatters in India. There is no protection or countermeasure for piracy or infringement of any right. 

All of this comes down to the fact that there is not enough recognition provided to the IPR and the lack of awareness adds to the lack of consequences or punishment in this particular area. 

 

SCOPE OF INDIAN LAWS TO TACKLE IPR

There are several types of intellectual property in India namely domain, trademark, patent, copyright, design, etc. IPR is important because it protects innovative energy, helps economic growth, and encourages investment in research and development. A number of laws have been passed to enforce IPR in India. Some of these laws are the Patents Act, 1970, Indian Trademarks Act, 1999, Indian Copyright Act, 1957, New Designs Act, 2000, Geographical Indications of Goods (Registration & Protection) Act, 1999, Protection of Layouts for Integrated Circuits Act, 2000, Protection of Plant Varieties and Farmers Rights Act, 2001, Biodiversity Act, 2002. These laws provide the protection of patents, trademarks, copyrights, etc. 

 

There are certain problems with the IPR regime in India. 

  • Section 3(d) of the Indian Patent Act 1970 disallows patents to new forms of a known substance without any therapeutic effects
  • Foreign investors bringing new technology to India are concerned about the replication of their technology.
  • There are no firm laws for the violation of IPR.
  • The lack of awareness plays a vital role in the negligence towards the cybercrimes in the field of IPR.
  • Enforcement of the Copyright Act is not impactful and the piracy of copyright material is all across.

 

CONCLUSION

Intellectual Property Rights hold major importance in these times. This is an area that needs massive attention and awareness to protect the rights of developers, creators, and artists. 

A significant amount of time, attention, and knowledge shall be put in to improve the enforcement of these laws, especially in India. Even though the internet is a huge platform for artists and innovators to showcase their work, strict laws shall be put in force to maintain the authenticity of these inventions and shield the rights of the developers. Strict laws shall be enforced and awareness shall be raised to safeguard the rights of the developers, innovators, creators, and artists.

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