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Intellectual Property Rights in the Digital Era, II

Feb 14, 2006
Praveen Dalal

Connecting IP and IT

page 1 of 2

III. The Digital Era

The relationship between information technology (IT) and IP is not only direct but also cannot be ignored. This is so because use of IT may enhance the value or diminish its value. The use of IT may help in the enforcement of these IP and at the same time it may assist in the violation of the same. It is for us to decide and determine on which side this IT should be. The correct choice can be exercises only if we are aware of both the sides of the coin named Intellectual Property Rights. The front face of the coin is the IP segment but the other side popularly known as cyber law[15] is equally important. We cannot appreciate and protect IP completely and comprehensively unless we take care of the other side of the coin as well, which is posing the main challenge to the IP segment.

The use of IT has posed certain challenges before the IPRs holders. These challenges can be categorized under the following groups:
(1) Challenges for Copyright, and
(2) Challenges for Trademarks.

(1) Challenges for copyright: With the advancement of information technology, copying, modifying, and distributing of copyrighted materials has become very simple and difficult to trace. The copyright owners are now at the mercy of a technology that has raced ahead of the law. Because the Internet is a cooperative venture not owned by a single entity or government, there are no centralised rules or laws governing its use.

Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organisations. The laws of various countries, including India, were modified keeping in view this nature of IT. The traditional jurisdictional theories were found insufficient and the concept of 'long arm jurisdiction' was adopted that extended the jurisdiction of the court over activities of cyberspace players having extra-territorial nexus. These cyberspace players can be grouped under the following headings:

(I) Internet Service Providers (ISPs),
(II) Bulletin Board Services Operators (BBSO),
(III) Commercial Web Page owner/operators, and
(IV) Private users.

(I) Internet Service Providers (ISPs): An ISP most often provides Internet access and he may be held liable for copyright infringement if he allowed the same directly or indirectly. He will, however, not liable for mere providing of services or when the infringement occurred without his knowledge and participation. An ISP/NSP can escape his liability by showing that he exercised a 'due diligence' to prevent the copyright infringement.

(II) Bulletin Board Services: The BBSs are more vulnerable to copyright infringement litigations than the ISPs. These BBSs may allow the subscribers to view, upload, and download copyrighted material of others. They are in direct control of the contents posted, uploaded and downloaded and it is difficult to prove that they were not aware of these activities.

(III) Commercial Web sites: The Web Page owners must be cautious of the things they post on their Web Pages so that they do not violate the stringent provisions of the copyright laws. A Web Page owner cannot successfully plead and prove that they were unaware about the copyrighted material because copyright notices are prominently given in authorized software. They also have the controlling power over the content of their pages. The owner are usually the parties that actually perform the uploads to their pages.

(IV) Private Users: A computer user who uploads copyrighted material to the Internet is liable for direct infringement. This liability could be avoided only if he can prove the fair use doctrine. Thus, an Internet user should not post copyrighted material on the Internet in a casual manner.

Online copyright protection in India: The reference to on-line copyright issues same.

It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957.[22] Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked. Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000 can prevent the same.

(B) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act. Thus, if a person (including a foreign national) violates the copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network accesses or secures access to such computer, computer system or computer network[23] or downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium[24], he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages up to the tune of rupees one crore which is deterrent enough to prevent copyright violation.

(c) A network service provider (ISP) will not be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.[25] The network service provider under section 79 means an intermediary and third party information means any information dealt with by a network service provider in his capacity as an intermediary.[26]

(d) The provisions

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