Author: Snehal Tanaji Shirke.
College: Parvatibai Jondhale Women’s Law College, S.N.D.T University, Mumbai
We are living in the age of the internet and this internet is an invention of high-end science and modern technology. In the past few years, unlawful use of the intellectual property has on the internet has become more frequent. The Internet provides so many opportunities for users, entrepreneurs, creators, operators, public for uses like to use the information, knowledge, entertainment. But, when it comes to intellectual property and its rights, challenges have to face. We are in the 21st century and with the help of modern technology, we can use and transfer over the internetworks of Intellectual property.
Keywords: Intellectual property, Jurisdiction, Intellectual property rights, IPR, and internet
Due to the global nature of the internet, an internet Intellectual Property infringement usually happens not only in one country but also across the borders and thus it leads to many difficulties to protect the IPRs from violation over the internet. Protecting IPR in this global market leads to serious challenges. In situations like the Intellectual property is connected to more than one country and one has no idea where the right holder and infringer lives. In such a case to file a case it is necessary to know which courts have over the case. The jurisdictional challenges in today’s age of fast communication have invited various viewpoints for its resolution including significant changes in the existing legal framework.
The ever-escalating importance of intellectual property in international and domestic commerce is remarkable. Most obvious are the impact of electronic commerce and the growth of the internet as a selling medium, a forum that transcends national boundaries.
What is Intellectual property?
The term intellectual property has come to be internationally recognized as covering patents, industrial designs, copyright, trademark. The scope of intellectual property is expanding very fast and attempts are being made by persons who create new creative ideas to seek protection under the umbrella of intellectual property rights. The intellectual property of whatever species is in nature intangible incorporates property. In each case consists of a bundle of rights in relation to certain material objects created by the owner.
A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. Protection to a patent granted for a limited period i.e. 20 years.
Copyright means the exclusive right to do certain acts in relation to original literary, dramatic, musical, artistic, cinematograph films, sound recording.
A trademark is a distinctive sign which identifies the goods and services of a company from those of another. It helps consumers to identify and chose between the various products.
Design is something that is applied to the articles and it consists of three-dimensional features, two-dimensional features. Owners have the right to prevent others from manufacturing, selling, etc.
Intellectual property and internet:
Nowadays we cannot even imagine life without the internet as it supports in every field of business. Due to specific features of the internet, the question of jurisdiction arises. The internet connects the people of the whole world across different jurisdictions. The enormous technological development of transport and communicators has resulted in global trade and commerce. Intellectual property can travel effortlessly from one country to another.
Today, intellectual property is a growing site of conflicts and controversies as well as a new source of power and wealth due, in part, to its reconceptualization as a commodity of world trade and the enhanced profitability and access possibilities that digital technology has opened up.
Piracy of intellectual property has become easy. There are issues of privacy and data protection regarding internet users and therefore it is difficult to know who is the infringer of the creation. Today because of the internet explosion give rise to the question such as how to enforce IP laws on a global scale. The specific features of the internet such as worldwide accessibility make it difficult to identify the location of events that gave rise to the damage of such intellectual property.
Online/Digital of Intellectual Property Rights infringement:
According to various reports and surveys conducted, the fastest growing area of counterfeit trading and Intellectual Property Infringement is online. Infringement occurs when a person does or authorizes someone to do any of these acts without the owner of that property. Intellectual property rights infringement on the Internet is no different from traditional offline infringement, but the speed and perfection with which online infringement is achieved are different.
Types of online infringement:
- Piracy of copyright
- Counterfeit goods, keywords, the domain name is a trademark
- Illegal file-sharing of 3D or 2D of design rights
- Copying digital content of the true owner
- Peer to peer file sharing
- Virtual marketplace for music and entertainment products now exist nationally in cyberspace.
- Infringement of copyright in cyberspace
- Uploading copyright material
- Framing and linking in copyright
Case law: Yahoo! Inc V. Akash Arora (1999)
One of the most important cases in this regard has been the yahoo case. Wherein the internet search engine, yahoo Inc sued and internet pirate who had copied the domain nameyahooindia.com
- The defendant installed a website yahooindia.com nearly identical to the plaintiff’s renowned yahoo.com and provided services similar to those of the plaintiff.
- The Delhi high court granted an injunction restraining the defendant from using yahoo either as a part of his domain name or as a trademark law applies with equal force on the internet as it does in the physical world.
Difficulty in detecting infringement:
It is easy for the person to infringe the copyright matter but it is difficult for the copyright owner to detect who is the infringer. There is less chance of the right holders to realize that their rights have been infringed. Thus, the intellectual property rights infringement over the Internet has an impact not only on direct investment in creative industries but also has an economic impact on society as a whole. The real scale of intellectual property rights infringement over the Internet is difficult to appraise. Therefore, it is important to take measures with regard to detecting intellectual property rights infringement over the internet.
The impact of Jurisdictional problems is not limited to a particular branch of Law. Jurisdiction means the power or authority of a court of law to hear and determine a cause or a matter. Generally, the jurisdiction is based on the territorial, subject matter, and pecuniary. But when it comes to the infringement of intellectual property rights over the internet it is difficult to recognize the person who has infringed the intellectual property by the owner and in which court the aggrieved has to file a suit.
The jurisdictional issue is important when we talk about intellectual property violations or infringement over the internet through the internet people are connected with each other all over the world. With the increasing complexities of cyberspace, it becomes very difficult to determine whether or not the individual is responsible for the infringement.
At present, the lack of jurisdictional rules of intellectual property rights infringement over the internet creates legal uncertainty where the plaintiff can bring a suit in case of multiple jurisdictions. The jurisdictional challenges in today’s age of fast communication have invited various viewpoints for its resolution including significant changes in the existing legal framework. Internet being one of the most significant changes in the field of information technology requires more than a mere adjustment in the law governing it. One cannot overlook the requirement of appropriate changes in the law. Failure to do so would lead to new complex legal issues.
Complex legal issues like jurisdictional issues that call for appropriate solutions require the right approach of academicians, judiciary, and legislator for suggesting the potential range of solutions. The solutions should not prove to be a counterproductive opening path for further conflicts and confusion. To arrive at such a conclusion one has to go beyond the formal legal reasoning that requires inductive and deductive reasoning by relying on precedents, legal principles, and statutes. This may not be appropriate to keep pace with technological changes that are taking place rapidly.
Section 13 of the Civil Procedure Code:
If a suit is decreed against an Indian in a foreign court for infringement on the internet, the same can be enforced in accordance with section 13 of the Civil Procedure Code 1908. In case of infringement by a foreign national, the Courts must exercise extraordinary care with regard to unresolved jurisdictional issues.
One jurisdiction may also decline to recognize such rights. This presents a practical difficulty in framing laws that would govern cyberspace. No single state can exercise control over the internet as a whole. The fact that there are no physical boundaries in cyberspace, indeed, has far-reaching consequences. Which state will have prescriptive jurisdiction to frame a law and which state will adjudicate a cross-border dispute, the effect of which may experience in multiple jurisdictions. How to enforce a law if at all we determine which state’s law prevails may frequently need to be addressed in internet cases.
The WIPO Performances and Phonograms Treaty (WPPT), WIPO Copyright Treaty (WCT), and the Berne Convention are also silent with respect to the uniform practice to exercise jurisdiction.
Internet doesn’t have boundaries:
As I have mentioned earlier that the internet is the network of networks. When a person opens the site on the internet that may be of another country so the user doesn’t realize that they are crossing the state boundaries and no person can be stopped from doing this. The Internet not only connects people all over the world but through the information or business activities we are moving towards modernization. no single entity or country controls the internet. It is just like to travel without a password from one country to another.
However, due to this even if any person has infringed the intellectual work of another person it would be difficult to know who has infringed as the internet is global phenomenon.
The level of anonymity arises here as the right holder or owner of the intellectual property can’t detect the infringer when the infringement or violation took place on the online platform. It is one type of challenge which the owner can be faced.
If the owner is not aware of the violator it would be difficult to recognize the person.
Jurisdiction issue is one of the important challenges for the owner. Suing for online infringement of IP protected material often involves cross territorial action. This raises a question about the competency of the jurisdiction. Lack of jurisdictional rules infringement over the internet creates legal uncertainty. This issue does not arise when the infringement is not upon the digital platform. Hardship is thus faced in deciding if the jurisdiction shall be determined on the basis of the origin of material or place of storage of material or placed where the material is displayed.
- Infringer may escape after infringement:
Once the infringement has been detected, it is necessary to identify the alleged infringer and where he actually resides which is also a challenge in front of the intellectual property right holder. The details of such person more difficult to assess and to verify. Even after having the details It cannot be denied that the infringer may try to escape once the infringement is done.
- Conflict of law may exist etc.
Washington Post Company company v. TotalNews.Inc:
As a one-step news site, TotalNews.com linked to many news sites but kept a frame or border around them, which the news sites argued made it look like the content was from TotalNews.com changed the ad layout on the page, and kept TotalNews.com as the address for bookmarking purpose.
In the complaint the news companies claimed that TotalNews misappropriated their trademarked and copyrighted material, thereby engaging in a host of crimes including unfair competition, federal trademark dilution, and trademark and copyright infringement. The news organizations said that their websites as they appeared within the TotalNews frames, were substantially altered from the form in which they intended them to appear to users and that it was done solely for TotalNews profit.
The court never decided the TotalNews case because the parties settled. TotalNews agreed to remove the frame.
Ticket master corporation V. Microsoft corporation:
In 1997, the Ticketmaster filed a complaint in federal court in the Central District of California alleging that “Microsoft’s action diluted their trademarks; created a false, deceptive and misleading representation that there was a formal relationship between the 2 of them; constituted a commercial misuse of their trademark. the defendant provided for specific hyperlinks to specific pages in Plaintiff’s site.
Microsoft at that time operated sidewalk, a recreational and cultural guide website. What Microsoft was doing is simple – if a sidewalk user wanted to buy a ticket to a particular event mentioned on the site, sidewalk offered them a link to Ticketmaster’s ticket purchase page. They were actually promoting Ticketmaster sales and sending them customers. A month after the suit was filed; Ticketmaster blocked sidewalk users from their site. Links set up from sidewalk then took users to Ticketmaster page that read, “this is an unauthorized link and a dead-end for sidewalk.”
In 1999, the 2-year-old lawsuit was settled out of court. Details of the settlement were not made public, but the deep links were removed, directing sidewalk users to the Ticketmaster homepage.
Possible way out:
- Introducing a new jurisdiction for infringement of online intellectual property cases as there is no boundary.
- Adopting special jurisdictional rules for internet IP infringement cases can be another potential solution.
- In order to balance between the Property rights holders and users, the proper national framework should be made while keeping the international legislation protected.
- The court should give the powers to exercise the jurisdiction such as:
- the place of uploading jurisdiction,
- the place of downloading the infringing jurisdiction,
- the place where the host server is situated,
- the place of the defendant and habitual residence.
It can be concluded that the challenges are all the more difficult to deal with because of the increase in the new technologies. The Internet is more of a curse than a blessing. There is a need to form guidelines about the digital world that can enhance the issues like jurisdiction to file a suit. The new technology should enter to detect the whole history of the infringer so it will be easy to catch him. Other than this without a clear and effective jurisdictional rule of intellectual property rights infringement over the internet, the international market cannot function properly.
It is also important to be in sync with the various piracy laws of different countries. There is a lot of ambiguity about the jurisdiction. The absence of national boundaries on the Internet requires the development and adoption of international norms directed toward the unification of the appropriate national legal systems.
 Intellectual property law by P. Narayan 3rd edition 2018, page no 2
 No. 97 Civ 1190 (PKL) (SDNY 1997)
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