2021

Intellectual Property
Rights in Cyber
Space

Dr. Babasaheb Ambedkar Open University

Intellectual Property Rights in Cyber Space
Course Writer

Ms. Shivani Jadhav Research Associate,

Gujarat National Law University
Ms. Ambika Batas Research Associate,
Gujarat National Law University
Ms. Dhanya Assistant Professor (Research),
Gujarat National Law University

Content Reviewer
Mr. Kumar Gaurav Chanakya National Law
University, Patna, Bihar

Content Editor

Prof. (Dr.) Nilesh K. Modi Professor & Director,

School of Computer Science
Dr.Babasaheb Ambedkar Open University,
Ahmedabad

Copyright © Dr. Babasaheb Ambedkar Open University – Ahmedabad. 2021

ISBN:

Printed and published by: Dr. Babasaheb Ambedkar Open University, Ahmedabad

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and do not necessarily reflect the views of Dr. Babasaheb Ambedkar Open
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this learning material. Readers are requested to kindly notify missing attribution, if
any.
 Dr.Babasaheb PGDCL-202
Ambedkar Open
University

Intellectual Property Rights in Cyber Space

Block-1: Interface of Intellectual Property Rights
And Cyber Space

UNIT-1
Intellectual Property Rights Vis-À-Vis Cyber Space 02

UNIT-2
Usage of Internet and The Evolving Challenges of IPR
Issues in India 13

UNIT-3
Cyberspace 21

UNIT-4
Cyber security and The Theft of Intellectual Property Online
30

Block-2: Copyright and Cyber Law

UNIT-1
Copyright in Cyberspace 41

UNIT-2
Copyright and Infringement in Cyberspace 50

UNIT-3
E-Commerce & Its Copyright Issues 58

iii
UNIT-4
Copyright Protection in Cyberspace - A Comparative Study
Of USA and India 70

Block-3: Trademark and Cyber Law

UNIT-1
Trademark Trafficking in Cyberspace 80

UNIT-2
Infringement of Trademark in Cyber Space 90

UNIT-3
Trademark Law in Cyberspace: Protection to Internet
Address 99

UNIT-4
Domain Names, The Internet, and Trademarks 109

Block-4: Emerging Issues in Relation to IPR and

Cyberspace
UNIT-1
IPR Management: Emerging Cyberspace Issues in Knowledge
Society: A Critical Analysis 119

UNIT-2
Challenges to Copyrightable Work in Cyberspace 130

UNIT-3
Private International Law and Intellectual Property Rights on
The Internet 147

UNIT-4
Intellectual Property, Cyberspace and International Law 160

4
 Block-1

INTERFACE OF INTELLECTUAL
PROPERTY RIGHTS AND CYBER
SPACE

1
Unit 1: INTELLECTUAL
PROPERTY RIGHTS VIS-À-VIS 1
CYBER SPACE
Unit Structure

1.1 Learning Objectives

1.2 Introduction

1.3 Interface of Cyber Law with Copyright Law

1.4 Interface of Cyber Law with Trademarks and Domain Names

1.5 Cyber squatting

1.6 Dispute Resolution in Cyber Law

1.7 Conclusion

1.8 Let’s sum up

1.9 Further reading

1.10 Check your progress: Possible answers

1.11 Activity

2
1.1 LEARNING OBJECTIVE

After going through this chapter, you should be able to understand

Interrelationship between intellectual property rights and cyber law
The concept of Cybersquatting and its impacts
Dispute resolution in cyberspace

1.2INTRODUCTION

The rapid evolution of cyberspace over the last decade owing to the extensive
growth of e-commerce and e-governance on digital platforms has resulted in
establishing its unforeseen inter-relationship with a varied range of disciplines, the
most significant of them being law. Content which is in the electronic form and can
be represented as electronic record are at the epicenter of this Information
Technology Ecosystem. With the mass increase in the use of cyber space,
availability of content (electronicform) across digital platforms increased by many
folds; innovation gave rise to the creation of original and novel content, and
intellectual property was disseminated overcoming all geographical boundaries.
Cyberspace being a tool of access to data and resources, it expanded human
reaches towards global information. As a result, there developed an undeniable
relationship between cyberspace and the intellectual property in the content
available on the cyberspace.
However, while on one hand, content of various kind including elements of copyright,
trademark and patent became easily available to one and all across digital platforms,
on the other, there arose instances of violation of intellectual property owing to theft
of such content which in turn resulted in complications of piracy and infringement of
the rights accruing from such intellectual properties. 1 Consequently, the necessity of
protecting digital content was acknowledged, and accordingly, the legal framework of
Cyber Law was established to address all concerns of misuse and misappropriation
of intellectual property on cyberspace. Apart from the changes in Cyber Law,
amendment has been brought in the existing Intellectual Property Laws to make it

1
Somu, C.S.. (2006). Intellectual Property Rights In Cyberspace. Paradigm. 10. 62-68.
10.1177/0971890720060110.

3
compatible to digital platforms as well as digital contents. Nevertheless, the
necessity of constantly adopting technological measures towards the protection of
content available on digital platforms became all the more significant with the
strengthening impact of cyberspace on the society and its growth.
Intellectual property is fundamentally associated with territoriality, while cyberspace
cannot be restricted within territorial boundaries. As a result of intellectual property
being available on cyberspace, the inherent nature of intellectual property underwent
an evolution, thereby giving rise to newer interpretations of both cyberspace and
intellectual properties. As it is evident from existing statute on cyberspace
considerably lacks due attention A major portion of the concept of cyber law hence
needs to be studied in context of its association with intellectual property rights.

1.3INTERFACE OF CYBER LAW WITH COPYRIGHT LAW

Cyberspace provides to copyright law a platform to promote and channelize its

objectives and purposes, the most significant of which is to provide to the society
access to knowledge for establishing overall societal advancement. The intrinsic
philosophy of copyright law is aimed at fostering creativity and innovation which the
copyright owner and/or holder may subject to commercial exploitation; and
cyberspace served as the perfect medium for fulfilling such purposes. 2
Notwithstanding the positive impact of the internet on copyright law, there is no
denying that owing to the inherent nature of copyright law, it has suffered extensively
as a result of exposure to emerging technologies, especially the growth of
cyberspace. The very structure of cyberspace and its inherent characteristics has a
dual impact on the copyright regime. Both positive impact and negative impact can
be easily found the in distribution, reproduction and its exploitation/accessibility of
copyright material. While distribution, reproduction and exploitation of copyrighted
material have found new direction through cyberspace and content has become
easily accessible, it has also adversely affected the copyright holders. Not only does
the internet eliminate all distinction between private and public use, but it also
creates complications towards the interpretation of use of copyrighted materials

2
A. Rahmatian, (2015) ‘Cyberspace and intellectual property rights’, in: Tsagourias, N. T. and Buchan, R. (eds.)
Research Handbook on International Law and Cyberspace (Cheltenham: Edward Elgar), 2015, pp. 72-93
(chapter 4)

4
thereby diluting the grounds of copyright infringement. The fundamentals of the
copyright law state that infringement shall be deemed to have occurred if the
exclusive rights of the copyright owner are exercised without express authorization of
the owner or right-holder. Since the copyright law validates the use and/or
reproduction of copyrighted material for personal/private use, it is essential to
understand whether copyrighted content has been subjected to private use or not for
determining the occurrence of infringement. However, cyberspace has introduced
digital technology that has allowed merging of private and public spheres into one;
as a result of which, copyright owners have failed to effectively exercise control over
the use of their content and have often failed to prevent unauthorized exploitation of
the same. Digital technologies introduced by cyberspace include all forms of
copyrightable content that might inter alia include texts, graphics and images, which
may be combined in various forms to generate new content. 3
The reproduction and display of a copyrighted work of another person, in a non-
removable or removable storage medium, without his authorization amounts to an
infringement of statutory exclusive rights vested in the said copyright owner.
In Kelly v Arriba Soft Corp. 4, the plaintiff, Leslie Kelly, a professional photographer
who had copyrighted many of his images of the American West. Some of these
images were located on Kelly’s website or other websites with which Kelly had
license agreement. The defendant, Arriba Soft Corp. operated an Internet search
engine that displayed its results in the form of small pictures rather than the more
usual form of text. Arriba obtained its database of pictures by copying images from
other websites. By clicking on one of these small pictures, called ‘thumbnails’, the
user could view a large version of that same picture within the context of the Arriba
web page. The circuit court held that “the creation and the use of the thumbnails in
the search engine is a fair use, but the display of the larger image is a violation of
Kelly’s exclusive right to publicly display his works.
As opposed to the primitive system of dealing with physical copies of copyrighted
content which allowed right-holders to keep track of the use of their copyrighted
materials, cyberspace has introduced a system that allows unprecedented
replication, spread, reproduction and sale of content within mere seconds without

3
Bently, Lionel and Sherman, Brad (2009), Intellectual Property Law, 3rd ed., Oxford: Oxford University Press
4
280 F. 3d 934 (9th Cir 2002)

5
adversely affecting the quality of such content. As a result, the market for such
copyrighted content gets hampered, as does the copyright owners’ right to share the
revenues accrued from exploitation.

1.4INTERFACE OF CYBER LAW WITH TRADEMARKS AND

DOMAIN NAMES

Trademarks, as commonly understood are marks representing goods and/or

services or chains thereof graphically or otherwise, thereby allowing consumers to
identify goods and services as well as distinguish between goods and services of
similar nature and kind. The Trademarks Act, 1999 aims at acknowledging the rights
of registered trademark owners and restricting fraudulent exploitation of the goodwill
of one chain of goods/services by another similar chain. One of the basic functions of
trademark from the perspective of owner is to protect his goodwill in the market and
from the customer’s/user’s perspective it enables them to distinguish goods and
services in the market. However, the evolution of cyberspace has given rise to ample
scope of misuse of such trademarks by unauthorized parties which in turn has
resulted in misleading consumers and violating the rights of the original trademarks. 5
In Uniply Industries Ltd. V Unicorn Plywood Pvt. Ltd. 6, the Supreme Court has laid
down test to determine continuous prior use for grant of temporary injunction in trade
mark related cases. It has been observed that, ‘some courts indicate that even prior
small scale of goods with the mark are sufficient to establish priority, the test being to
determine continuous prior user and the volume of sale or the degree of familiarity of
the public with the mark. Bona fide test of marketing, promotional gifts and
experimental sales in small volume may be sufficient to establish a continuous prior
use of the mark.
Domain names have become a kind of ‘e-commerce marks’ in the online medium.
These are digital business addresses – a point of business contact or transaction.
Domain names provide a system of easy-to-remember Internet addresses, which
can be translated by the Domain Name System (DNS) into the numeric addresses
(Internet Protocol (IP) numbers) used by the network.

5
Drahos, Peter (1996), A Philosophy of Intellectual Property, Aldershot: Ashgate
6
(2001) 5 SCC 95.

6
The inter-relationship between trademarks and cyberspace was developed in
exclusive association with the concept of domain names. 7 In simple words, domain
names represent the IP address used in surfing the world wide web. It is owing to
use of domain names on cyberspace that the strictly territorial nature of trademarks
has now broadened to become global. While on one hand such domain names may
refer to internet based digital platforms associated with certain goods and/or services
and in turn substantiate the commercial prospects of online businesses, on the other,
they would be indicative of the identity, goodwill and quality complimenting such
goods and/or services. Evidently, misappropriation of domain names could not only
cause immense damage to the business of infringed chain of goods/services, they
could completely destroy the goodwill associated with such brands which may have
taken ages to build. 8 Additionally, domain name registrations being done on a ‘first
come first served’ basis, there are various instances of fraudulent registration of
domain names whereby the party registering, in spite of having no legitimate interest
in the brand, deliberately infringed the rights of the original trademark owners to
acquire registration in an unauthorized manner. Infringement of trademarks through
abuse of domain names on cyberspace is hence a very serious concern for
flourishing trades and businesses.

1.5CYBERSQUATTING

Cybersquatting, which literally means ‘sitting on another person’s property’, may be

described as instances of fraudulent use and misappropriation of domain names
which involve exploitation of online identities of brands that result in violation of rights
of the original right-owners. Cybersquatting often give rise to situations wherein
parties who have no legitimate rights in certain trademarks get domain names
registered in their names and subsequently sell those to the original owner or other
parties at exorbitant prices. It may be done inter alia with the intent of preventing the
original owner of brands from having access to such domain names, diverting the
traffic off the cyberspace associated with the websites of competing brands, and

7
Drahos, Peter (2002), ‘Developing Countries and International Intellectual Property Standard-Setting’, 5(5)
The Journal of Wold Intellectual Property, 765-789
8
Easton, Catherine R. (2012), ‘ICANN’s core principles and the expansion of generic top-level domain names’,
20(4) International Journal of Law and Information Technology, 273-290

7
selling such domain names to earn profits. Evidently, cybersquatting has the
potential to cause activities leading to cyber wars.
In India, there is no statutory provision to prevent cybersquatting; however, certain
provisions of the Trademarks Act, 1999 are broad enough to address such issues.
Cybersquatting can be protected within the legal framework of ‘passing off’ which
emerges from common law principle. Consequently, any person lodging a complaint
against cybersquatting necessarily involves the mandate of establishing the following
–
a) Dishonest intention of the fraudulent party
b) Absence of legitimate rights being held by the fraudulent party
c) Similarity between the domain name fraudulently registered and the
trademark owned by the authentic right-holder

The first Indian case that extensively discussed issues of domain name disputes vis-
à-vis cybersquatting was Yahoo Inc. v Akash Arora (78(1999) DLT 285), 9 wherein,
the defendant contended having used a common dictionary word and having
provided a disclaimer in the website with the intention to avoid confusion being
created with the plaintiff’s website which was registered in more than 69 countries.
However, the court held that despite such disclaimers, there would be necessary
associations made with the original website of yahoo which was based in a well-
known and distinct trademark. Subsequently, in the case of Tata Sons Ltd. &Anr.v.
ArnoPalmen&Anr, 10 the Delhi High Court dealt with a landmark case on domain
name disputes and cybersquatting. The plaintiffs sought permanent injunctions
against the defendant’s use of the domain name ‘www.tatainfotech.in’ or such
domain names deceptively similar to the plaintiff’s registered trademark which, they
alleged, had been registered only with the intention of earning illegal gains by
commercially exploiting the same. The defendant however, argued that ‘Tata
Infotech’ had been their trade name since 1997, and claimed to have earned a
goodwill in the trade owing to a flourishing business. The court held that similarity in
domain names could indeed result in diversion of traffic across websites, and could
even cause economic loss to the registered right-holders of the original trademark

9
Yahoo Inc. v Akash Arora (78(1999) DLT 285)
10
Tata Sons Ltd. &Anr. v. Arno Palmen&Anr 2013(54) PTC 424 ( Del)

8
owing to the outreach of e-commerce and cyberspace. It was hence held that the
impugned website had been registered with mala fide intentions in bad faith with the
sole objective of acquiring advantage from exploitation of the plaintiff’s registered
trademark.
There are also instances called ‘Reverse Domain Name Hijacking’, wherein, parties
come up with false allegations of cybersquatting against rightful owners through legal
actions, as a result of which, such rightful owners end up transferring their rights to
the fraudulent claimants for the sake of avoiding legal costs. Cases of reverse
domain name hijacking hence has been seen to happen majorly against small
entities or individual owners of trademark who often lack the financial strength to
take up expenses involved in litigation.

1.6DISPUTE RESOLUTION IN CYBER LAW LEARNING

OBJECTIVE
Resolution of disputes arising from use of cyberspace beings forth some basic
problems which are critical to address. Owing to the global outreach of cyberspace,
there often arise instances wherein the potential parties involved in a cyber dispute
are residents of two different countries. Further complications arise when the dispute
occurs in a territory which is different from the country of origin of either of the parties
involved in the dispute. Such situations give rise to critical questions of jurisdiction
which become difficult to resolve. Additionally, in cases where the disputes concern
the technology and/or its rapid advancement, the law often fails to keep pace with
such upgradations and succumbs to the gap which takes substantial time to be
bridged. For example, by the time a court of law successfully passes a decision on a
specific dispute, the technology might have become outdated and irrelevant. 11
In an attempt to reduce the confusion, several jurisdictions have come up with their
own territorial laws to tackle disputes relating to cyberspace wherein specific
situations of jurisdictional issues are addressed to address cyber crimes.
Additionally, principles of private international law gain relevance in the context of
disputes arising from cyberspace, and have served as effective in establishing
successfully resolution. Private International law being flexible and laden with
doctrines and principles, situations causing cyber disputes are subjected to tests and

11
Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass, San
Francisco, 2001) at 26 [Katsh and Rifkin].

9
approaches for analyzing which principle or doctrine would ideally apply.
Furthermore, mechanisms of additional dispute resolution such as arbitration,
mediation, negotiation, etc. often serves as effective in resolving disputes arising
from use and exploitation of cyberspace.

The Judicial dispute resolution under Trademark Dilution Act and Anti
Cybersquatting Prevention Act has been primarily performed by the US Courts,
whereas non-judicial dispute resolution under UDRP has been done by following
ICANN approved dispute-resolution service providers 12:
- Asian Domain Name Dispute Resolution Centre (ADNDRC)
- CPR Institute for Dispute Resolution
- National Arbitration Forum
- World Intellectual Property Organization
In India, the Information Technology Act, 2000 attempts to address cybercrimes and
disputes and provides for quasi-judicial bodies to be established for unencumbered
dispute resolution. As per the provisions of the Act, adjudicating officers are to hear
disputes of both civil and criminal nature relating to cyberspace and adjudge such
cases to ward damages in civil remedies or impose penalties in case of criminal
offences being committed. The Act further allows appeals being filed before the
Cyber Appellate Tribunal and subsequently before the High Court address disputes
involving cyber law.

1.7CONCLUSION

Over the last couple of decades, intellectual property has become assets owned by
the right-holders. There is no denying the necessity of protecting intellectual property
on or off cyberspace, for it acts as fuel for most modern trades. Owing to the
exposure, outreach and enormity of cyberspace, content on the internet especially
that including intellectual property requires all-round protection to restrict as well as
remedy potential misuse. With the growth in technology, there is ever-increasing
scope of new challenges emerging which might need advanced legal measures and
stricter regulations for ensuring a balanced platform for all the interested parties

12
eResolution [eRes] (approved effective 1 January, 2000; not accepting proceedings commenced after 30
November, 2001).

10
involved. Cyberspace needs to be bound by specific legal regulations today, more
than ever.

1.8LET’S SUM UP
In this chapter, we have studied about the interface of cyber law with respect to
copyright and trademark law along with case laws pertaining to it. In furtherance, we
have also seen an overview about cybersquatting and the dispute resolution in cyber
law.

1.9FURTHER READING
Dr. Farooq Ahmad, Cyber Law in India, New Era Law Publications, Edition
4th, 2011
RohasNagpal, Intellectual Property Issues and Cyberspace, Asian School of
Cyber Law Publication,Pune,2008
S. K. Varma& Mittal, Legal Dimensions of Cyberspace, Indian Law Institute,
New Delhi, 2003
V.K. Ahuja, Intellectual Property Rights in India, Lexis Nexis Butterworth's
Wadhwa, Nagpur, 2009

1.10CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. How does copyright law overlap with cyber laws?

Copyright law aims to foster creativity and innovation which the copyright owner
and/or holder may subject to commercial exploitation. Cyberspace serves as the
perfect medium for fulfilling such purposes. However, copyright law has suffered
extensively as a result of exposure to emerging technologies by adversely affecting
copyright owners through easy access of content and elimination of the distinction
between private and public use so as to result in copyright infringement and the
dilution of the grounds thereof. This is how cyberspace and cyber laws overlap share
an interface with copyright laws.
2. How are trademarks and domain names related to cyber laws and cyberspace?

Domain names represent the IP address used in surfing the world wide web owing to
which, the strictly territorial nature of trademarks has now broadened to become
global. In the developing cyberspace, misappropriation of domain names not only
cause immense damage to the business of infringed chain of goods/services, but

11
also destroys the goodwill associated with such brands completely. Cyber laws
attempt to address such misappropriation.

3. What is cybersquatting?

Cybersquatting refers to the act of registering names of well-known companies and

brands as domain names by fraudulent entities with the malafide intention of
reselling the same elevated prices for making profits.

4. Describe the process of dispute resolution associated with cyber crimes and
cyber laws?

Owing to the global outreach of cyberspace, individual jurisdictions have come up

with their own territorial laws to tackle disputes relating to cyberspace wherein
specific situations of jurisdictional issues are addressed to tackle cyber crimes.
Additionally, principles of private international law also become relevant and serve as
effective in arriving at successful resolutions. Furthermore, mechanisms of additional
dispute resolution such as arbitration, mediation, negotiation etc. often serve to be
effective in resolving disputes arising from the use and exploitation of cyberspace.

5. How does the Information Technology Act, 2000 address resolution of disputes
associated with cyber crimes?

The Information Technology Act, 2000 attempts to address cybercrimes and

disputes through quasi-judicial bodies to be established such dispute resolution. As
per the provisions of the Act, adjudicating officers are to hear disputes of both civil
and criminal nature relating to cyberspace and adjudge such cases to ward damages
in civil remedies or impose penalties in case of criminal offences being committed.
The Act further allows appeals being filed before the Cyber Appellate Tribunal and
subsequently before the High Court address disputes involving cyber law.

1.11 ACTIVITY

Elaborate the Intellectual Property issues in cyber law? (1500-2000 words)

12
Unit 2: Usage of Internet and
the Evolving Challenges of IPR 2
Issues in India
Unit Structure
2.1 Learning Objectives
2.2 Introduction
2.3 Present issue of IPR in India in light of Internet usage
2.4 Exploring the idea of liability
2.5 Internet and its impact
2.6 Let’s sum up
2.7 Further reading
2.8 Check your progress: Possible Answers
2.9 Activity

13
2.1 LEARNING OBJECTIVE

In this chapter, we will learn-

To review the existing issue on IPR issues in India
To study the existing IPR issues evolving from the unawareness of cyber
laws.
To evaluate whether increased usage of the internet shall create new IPR
issues in India

2.2 INTRODUCTION

For an intellectual property right controller, the Internet presents two fundamental
challenges: what to manage and how to administer. The increased usage of the
Internet is expected to pose a greater threat to IPR security than it does now. While
the Internet is poised to take off in the world, there are no realistic solutions to the
intellectual property rights problems that it raises due to a scarcity of scientific
expertise on the subject. There are already problems of intellectual property rights,
but they are more theoretical than realistic.
The growing use of the internet carries with it concerns of intellectual property rights
(IPR) security, which is critical in the current environment. Currently, the country is
unfazed by the vast challenge of infrastructural growth required for Internet
availability, and thus this requirement can be met in a matter of years. The internet
can be accessed from anywhere in the world. Priority issues include the laying of
high-speed national broadband networks and the provision of adequate telephone
lines. 13
To allow Internet services, a large number of nodes have been deployed in over two
dozen cities across the world. The government has granted appropriate permission
to private firms to make Internet services accessible in order to speed up the process
of provision of this sophisticated and fast means of the communication network. India
would become a major Internet consumer in the world as a result of the entry of
private Internet service providers, much as it did in the cable television service
market. The increased usage of the Internet is expected to pose a greater threat to

13
Aggrawal, Artee& Trivedi, Jatin& Burman, Sucheta. (2015). Usage of Internet and the Evolving Challenges of
IPR Issues in India: A Review. International Journal of Business Quantitative Economics and Applied
Management research. 1. 1-10.

14
IPR security than it does now. While the Internet is poised to take off in the world,
there are no realistic solutions to the intellectual property rights problems that it
poses due to a lack of scientific expertise on the subject. There are already problems
with intellectual property rights, but they are more theoretical than realistic.
The increased usage of the Internet is expected to pose a greater threat to IPR
security than it does now. While the Internet is poised to take off in the world, there
are no realistic solutions to the intellectual property rights problems that it raises due
to a scarcity of scientific expertise on the subject. There are already problems with
intellectual property rights, but they are more theoretical than realistic. This paper
examines the current problems in the field of intellectual property rights that have
arisen as a result of India’s increased use of the internet. 14

2.3PRESENT ISSUES OF IPR IN INDIA IN LIGHT OF

INTERNET USAGE
Copyright law is currently the most important tool for dealing with IPR problems on
the Internet. The Indian Copyright Act, which was first enacted in 1957. The Act has
been amended five times since its enactment i.e., in 1983, 1984, 1992, 1994, 1999
and 2012. The Copyright (Amendment) Act, 2012 is the most substantial and in
aligngment with digital transformation in general ad internet in particular. The
Copyright Act is now considered a piece of law, and the general outlook is that the
revised Act will be able to withstand copyright problems arising from emerging
technology, particularly those arising from the Internet. The Act has adapted to the
modern age by dropping some limiting clauses and phrases and extending the
meanings of works like cinematograph films (motion pictures) and sound recordings
(phonograms) to allow certain works in “any format” within their purview. It does not,
however, cover all facets of the digital problems that are now surfacing. Establishing
the distinction between proprietary and public usage is one of the most significant
copyright problems on the Internet. The Indian Copyright Act, like all copyright laws
around the world, distinguishes between copying for public and private use. 15
Reproduction for public use requires the consent of the right holder, while fair dealing
for private use, study, critique, or evaluation is permissible by statute. With the

14
Barlow, J. P. (1995). Property and speech: Who owns what you say in cyberspace?,Association for
Computing Machinery.Communications of the ACM, 3(12), 19.
15
Maloney, M. C. (1997). Intellectual property in cyberspace. The BusinessLawyer, 53(1), 225-249.

15
potential for an author to upload some copyrightable work to a large number of users
concurrently over the Internet from the privacy of his or her house, and users being
able to receive a perfect copy of the material sent simultaneously in their homes, this
distinction becomes meaningless. Many people assume that a new generation of
copyright norms is needed because the fine line between public and private lands is
eroding. Another case in point is that of publishing.
Publishers of books and music have made their influence known since the arrival of
the industrial revolution and the era of mass manufacturing. The value of their
existence has grown to the point that authors cannot picture a future without them.
The Internet has evolved into a powerful tool that has eliminated the middleman
between a writer and his or her audience. An author’s work is published on the
Internet, and readers can access it directly. The Internet, by inspiring any writer to be
a publisher, has once again served as an alarm bell, if not the death knell, for the
publishing industry, which was born with the invention of the printing press.
This fact begs the question of whether making a job available on the Internet
qualifies as a “publication.” “Publication” for copyright purposes, according to the
Indian Act, involves “making a work accessible to the public by issuing copies or
communicating the work to the public.” Because of its non-restrictive nature, this
term can be interpreted as including electronic publishing and, as a result,
“publication on the Internet.” However, it will take a few years for electronic
publication to make a significant impact in India. The fact that communicating over
the Internet is “public contact” is still an open question. The Indian Act has a detailed
description of the term “public contact.” According to the Act, “communication to the
public” requires “making any work accessible for public viewing, hearing, or
enjoyment directly or through any means of presentation or diffusion other than
issuing copies of such work, regardless of whether any member of the public
necessarily sees, listens, or otherwise likes the work so made available.” 16
This description is sufficiently descriptive to include Internet-based communication
within its framework. In view of this, Internet service providers in India would have a
difficult time deciding who holds the rights to the Internet’s content. Another issue is
the proper distribution. The sales right in Indian law is also terminated after the first

16
Tanenbaum, W. A. (1998). The challenge of cyberspace intellectual property.The Computer Lawyer, 15(2),
14-18. Features, Design, Photography, Technology,and Publishing Editors. (1998, Apr07.

16
delivery, as it is in most copyright laws. In the current situation, a student can sell a
used textbook, and a library can distribute the books it has bought to its members.
Since no single copy can be circulated without duplication on the Internet,
dissemination is limited to reproduction. On the Internet, the question of the right to
reproduction raises a number of fundamental issues. This stems from the very
essence of Internet transmission. Any stage of transmission requires replication.
Temporary copying (also known as caching) is an essential aspect of the Internet
communication mechanism through which messages will not be able to pass across
the networks to reach their intended destinations. And if a user just needs to browse,
transient copying occurs on the user’s screen.
Coverage of temporary reproductions was a hotly contested subject at the World
Intellectual Property Organization (WIPO) Diplomatic Conference in December 1996,
but the outcome has remained ambiguous to this day. Can a reproduction be
prohibited where it happens in the context of permitted use of the work and its
primary objective is to make the work available, or when the reproduction is of a
temporary or incidental nature? According to Indian law, reproduction must take the
form of a tangible entity, but it also requires “storing it in any medium through
electronic means.” Case laws are yet to specify whether reproductions happening in
Internet interactions are protected by the law’s right of reproduction, and once that
occurs, views on temporary and permanent reproduction, as well as the validity of
temporary reproduction, can differ.

2.4EXPLORING THE IDEA OF LIABILITY

The problem of responsibility is one of the most critical facets of copyright

compliance. There is also the matter of responsibility for actions performed during
the delivery of a legitimate (as opposed to an infringed) copy of a work. As previously
mentioned, the question is heavily contingent on the judiciary’s understanding of
different legal rights. When the court decides that in-transit copying, for example, is a
breach of a patent, concerns about responsibility emerge. Who should be made
accountable? Who is responsible for dispatching the job, receiving it, or the Internet
service provider? The solution may not be quick to come by. Another factor is the
transmission of a directly infringed copy of work over the Internet. The central
argument, in this case, is whether an Internet service provider should be found liable
for a subscriber’s copyright violation even though he is ignorant of the subscriber’s

17
behaviour. The Indian Copyright Act assumes that the infringement or abetment of
the infringement must be done “knowingly” by an individual in order to be deemed a
copyright violation. There is a reasonable risk that an Internet service provider, who
may not be aware of the subscriber’s copyright violation, may be excluded from
prosecution and penalty because of the term “knowingly.” 17
However, the above factor poses a new concern. Even if the Internet service
provider is not found guilty under Indian law, he may be found guilty under the laws
of another region. How does one control the internet, which by its very existence, is
universal and cannot be limited by national borders? Since the networks are widely
distributed around the globe, a message or piece of information may be sent via a
variety of countries before reaching its final destination.
The Internet service provider may not be liable in the country of origin or the country
of destination, however, he or she may be liable in a transfer country. This is a
problem that affects the whole world. The regulation of national IPR legislation bound
by federal authorities in the seamless world of the Internet poses challenging
problems. As a result, international law cooperation is urgently needed in this area; if
this is not achieved, the possibility of litigation in some countries will force the
Internet service provider to review the content being distributed for copyright
approval, causing a pause in the whole procedure. The challenge is to speed up
rather than slow down the flow of information. Any important technical innovation
triggers a trend change, and the Internet is no different. Better norms must be
established to delegate obligations to the parties involved; an Internet service
provider is not always an enabler of copyright infringement.

2.5INTERNET AND ITS IMPACT

Finally, we should state that the Internet as a medium is extremely complex. It is also
expected to be widely used in India, with the government announcing ambitious
plans to make it available throughout the world. This is a challenge that the private
sector providers have taken very seriously. As newer technology present more
nuanced problems to a society, the widespread use of the internet will pose a

17
Posch,RobertJ.,,Jr. (1999). Will intellectual property rights diminish incyberspace? Direct Marketing, 61(9),
29-31.

18
significant danger to the current copyright act. The protection of the rights of service
providers, producers of generated content, and customers is a major challenge and
mission.
We have a clear understanding that the Indian copyright act, as amended, is capable
of dealing with the above issues to a large degree, but there is still room for progress
in this field. The IPR administrator faces a unique difficulty in balancing the rights of
various Internet actors such as content companies, security providers, access
providers, and so on. This must be accomplished without jeopardizing the free
exchange of knowledge while still guaranteeing that the legitimate economic rights of
intellectual property creators are not jeopardized. The Internet’s IPR privileges are
reliant on this. The task for the IPR administrator is to determine how to implement
the IPRs on the Internet in the most cost-effective way after they have been
determined.

2.6LET’S SUM UP

In this chapter, we have learned the scope of IPR in light of internet usage. Besides,
we have also analyzed the existing legal framework in the said area along with its
interface with international conventions. We have also studied the concepts like-
publication, communication etc, as per Indian legislations.

2.7FURTHER READING

Barlow, J. P. (1995). Property and speech: Who owns what you say in
cyberspace? Association for Computing Machinery. Communications of the
ACM, 3(12), 19.
Cohen, J. B. (1996). Dilemma in cyberspace. Editor & Publisher, 129(51), 20-
21.
Maloney, M. C. (1997). Intellectual property in cyberspace. The Business
Lawyer, 53(1), 225-249.
Tanenbaum, W. A. (1998). The challenge of cyberspace intellectual property.
The Computer Lawyer, 15(2), 14-18. Features, Design, Photography,
Technology, and Publishing Editors. (1998, Apr07.

19
 Cohen, J. E. (1998). Lochner in cyberspace: The new economic orthodoxy of
“rights management”. Michigan Law Review, 97(2), 462-563.
Posch,RobertJ.,,Jr. (1999). Will intellectual property rights diminish in
cyberspace? Direct Marketing, 61(9), 29-31.
Elsmore, M. J. (2000). The implications of intellectual property law for the
auditing and protection of national and international brands: Part I. brands in
cyberspace. Managerial Auditing Journal, 15(3), 116-132.

2.8CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is “publication”?
“Publication” for copyright purposes, according to the Indian Act, involves “making a
work accessible to the public by issuing copies or communicating the work to the
public.” Because of its non-restrictive existence, this term can be viewed as including
electronic publishing and, as a result, “publication on the Internet.”
2. What do you mean by “communication to public”?
Whether or not any member of the public necessarily sees, receives, or otherwise
likes the work so made possible, communication to the public involves making any
work available for viewing, hearing, or enjoyment by the public directly or by any way
of presentation or diffusion other than issuing copies of such work.”

2.9ACTIVITY

Elaborate upon the concept of liability in light of Intellectual property right and its
related issues with internet usage. (Word count- 2000 to 2500)

20
Unit3:CYBERSPACE 3
JURISDICTIONAL SPHERES OF IPR
Unit Structure

3.1 Learning Objectives

3.2 Introduction
3.3 What is Internet?
3.4 Jurisdiction in International law
3.5 Jurisdiction of copyright infringement on internet
3.6 Protection of copyright on Internet
3.7 Data protection on internet
3.8 Recent cases on internet jurisdiction
3.9 Let’s sum up
3.10 Further reading
3.11 Check your progress: Possible Answers
3.12 Activity

21
3.1 LEARNING OBJECTIVE

In this chapter we will learn-

How the traditional principles of jurisdiction are being adapted to amenability
of jurisdiction of cyberspace-origin cases.
About the existing IPR issues evolving from internet.
About various provisions of law dealing with cyber related aspects.

3.2INTRODUCTION

Cyberspace is a technically amorphous vacuum, and its jurisdiction encompasses

many fields of law and policy, including intellectual property rights violations, which is
highly nuanced by copyright jurisprudence, and trade-related concerns. In
cyberspace, IP security is divided into four categories: copyright, data protection,
trademark, service mark, trade name, and trade dress, and domain names. In light of
competing arguments that are litigated in a conventional manner without a particular
model of jurisprudence suitable for settlement of various jurisdictional problems
arising from technical advancement, the jurisdictional sphere of cyberspace assumes
prominence. A single transaction in cyberspace can be governed by the laws of at
least three jurisdictions: (1) the user’s home state/nation, (2) the server hosting the
transaction’s home state/nation, and (3) the laws of the state/nation that refer to the
individual or company with which the transaction is conducted. 18
Jurisdiction corresponds to judicial, legislative, and administrative independence and
is a legitimate component of state sovereignty. Despite the fact that authority is a
part of sovereignty, it is not synonymous with it. The rules of a country which have
extraterritorial effects, stretching the country’s authority beyond its sovereign and
temporal boundaries. This is especially concerning because the Internet is a tool that
does not specifically recognize sovereignty or national boundaries. There is no
universally applicable international jurisdictional rule, and certain issues are usually
treated as matters of violation of laws or private international law. For example, a
website’s content can be legal in one country but illegal in another. Judicial

18
Achieving legal and business order in cyberspace: A report on global jurisdiction issues created by the
Internet, Business Lawyer, 55 (2000) 1801.

22
professionals are often faced with a conflict of law in the absence of a uniform
jurisdictional code.
In the case of United States v. Jake Baker, 19 the defendant faced criminal
prosecution for his online conduct, notwithstanding the fact that his case established
a precedent for the right to free expression on the Internet. Furthermore, in the near
past, a number of developers of peer-to-peer filesharing applications have been
subjected to federal litigation for copyright violations. When these suits are
international in scope, though, the scheme becomes incompatible. Simply put, what
is lawful in one country can be unlawful in another. In reality, in a civil case, even
separate requirements for the presumption of evidence will create jurisdictional
squabbles. Actually, the authority is determined by the location and operation of
online groups, which is based on the minimal touch principle. The vanishing point in
copyright jurisprudence is cyberspace. The union between the virtual and physical
worlds is a fertile ground for the birth of new theories and vast explorations that span
all aspects of living things. The relentless revolution in knowledge flow and
communication technology is forcing a worldwide rethinking of the concept of
intellectual property legal regime. Infringement of intellectual property rights on the
Internet has reached previously unheard-of levels. Standard forms of security such
as copyrights, trademarks, licenses, applications, databases, and so on currently
prove to be unable to address many of the issues, and no tailor-made alternatives
seem to be on the horizon. This artistic illusion has impacted governments,
companies, and people all over the world– particularly in a world where virtually
every action is a copy, where creativity happens at a breakneck rate, and where
knowledge is shared almost instantly and for free. These hydra-headed problems
provide the developing world with the challenge of an incoming wave of structurally
applied mechanisms, based on property rights and enforced by the world’s most
wealthy, intellectual property-exporting nations.

3.3WHAT IS INTERNET?

The Federal Networking Council (FNC) overwhelmingly passed a resolution

describing the word Internet on October 24, 1995. It defines the Internet as a global

19
US v Jake Baker, 890 F. Supp. 1375, 1381, 1997 Fed App. 0036P (6th Cir)

23
information system that (i) is logically linked together by a globally unique address
space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons;
and (ii) can support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons,
and/or other IPcompatibleprotocals; and (iii) offers, utilizes, or renders available high-
level services layered on the communications and associated infrastructure listed
herein, whether publicly or privately.
Origin and Subject Matter of Disputes
Conflicts in cyberspace may have a variety of causes. One significant and recurrent
source is an Internet arrangement. While a website connecting arrangement is an
example of an Internet-only agreement, Internet agreements do not often mean
Internet-only agreements and also have other elements. 20 A few of the forms, such
as the celebrity endorsement deal, have just a shaky Internet connection. Terms of
use arrangements, video content licensing agreements, domain name acquisition
agreements, website creation agreements, press releases for website milestones or
announcements, privacy policy, Internet advertisement agreements, copyright and
patent rights notices, website disclaimers, website contracts, and more are among
the legal documentation required for websites.

3.4JURISDICTION IN INTERNATIONAL LAW

In international law, there are three forms of jurisdiction that are commonly
recognized. There are: (1) the power to prescribe; (2) the power to enforce; and (3)
the power to adjudicate. The following are the types of historically recognized bases
of authority or doctrines in which a state may assert jurisdiction to prescribe a rule of
law over an operation in international law: Subjective territoriality (b) reflective
territoriality (c) nationality (d) security principle (d) passive nationality and (e)
universality, with the stipulation that authority must be exercised in a fair manner. 21
The territoriality issue in cyberspace can be resolved by pointing to the ‘law of the
site,’ i.e. the server where the website is physically stored. If applied literally,

20
Justice S. Muralidhar, Jurisdictional Issues in Cyberspace, THE INDIAN JOURNAL OF LAW AND
TECHNOLOGY.
21
Ms. Prevy Parekh, Cyberspace And Jurisdiction, JOURNAL ON CONTEMPORARY ISSUES OF LAW
(JCIL) VOL. 2 ISSUE 5.

24
territorialization of cyberspace through its servers has a number of issues, including
the existence of a webpage without its accessibility, constituents of a web page
collected from other servers, links to other pages located in other countries, and the
randomness and anonymity of cyberspace interactivity. The philosophy of foreign
space, which includes outer space and the high seas, is based on nationality rather
than territoriality. The relevant definition in outer space is the nationality of the
vessel’s registration, whether manned or unmanned, while on the high seas, the
nationality of the vessel, or the “rules of the flag,” is the predominant norm. A
conflicting theory compares the high seas to a “floating island,” with the jurisdiction
falling under federal jurisdiction. Furthermore, the prevailing ideas of res nullius (a
matter of no one) and res communis (a thing of all) confuse definitions of special
significance in disagreements over international spaces (a common thing or common
heritage of mankind).

3.5JURISDICTION IN COPYRIGHT INFRINGEMENT ON THE

INTERNET

The following quote exemplifies how closely copyright and the Internet are linked:
‘Since its inception, the Internet has been described as the biggest threat to
copyright.’ The Internet is awash in material, all of it protected by copyright to varying
degrees. News stories, apps, books, screenplays, animations, videos, Usenet posts,
and even email are examples of copyrighted works on the Internet. In truth, the
frightening reality is that copyright law protects virtually everything on the Internet.
That can cause issues for the unfortunate surfer’. 22

3.6PROTECTION OF COPYRIGHT ON THE INTERNET

Electronic copyright is a modern phenomenon that is emerging, and with it comes a
legal shift in the field. Copyright covers the originality, underlying architecture, and
contents of a webpage, including links, original text, images, audio, video, html and
other markup language sequences, lists of websites assembled by a person or
entity, and any other special elements that make up the material’s original existence.
There are some inherent limits of copyright rights. Only original means of presenting
facts and concepts are preserved. Fair usage makes up almost half of the copyright
law, which gives you restricted ability to use other people’s art without their

22
The Copyright website, http://www.benedict.com (1 May 2010)

25
permission. Since terms like “fair” and “rational” are difficult to describe exactly, it is
the least clear-cut copyright cap.
Films, tv programs, images, paintings, and artwork, including screenplays, teleplays,
and blueprints, are all protected by copyright in the artistic domain. The main issue is
combining all of the above without infringing on someone’s copyright with one or
more of them. Many jurisdictions have a scheme for licensing internet works, which
may or may not cover computer systems and automated databases, which have
their own registration laws. Only the copyrightable content of the work identified as
the subject of the copyright and deposited with the copyright office with appropriate
application forms (US Circular 66) is protected. This includes literary works, visual art
works, performing art works, sound recordings, serials and periodicals, and mask
works, to name a few.
Apart from that, copyrights exist in software as well. The fundamental concept of
English law, for example, is that the author of the code holds the copyright in the
script or website. The fact that the individual commissioning the work has paid for it
has no bearing on this. This law has two significant exceptions. To begin with, if the
work was performed by a business employee, the copyright belongs to the boss.
Second, the author has passed possession of the copyright by a signed contract that
allows the author to delegate ownership to another person, typically the client. 23
In spite of legal precedent, Religious Technology Centre v Netcom 24 and Playboy
Enterprises v Frena 25, two American cases dealing with Internet copyright problems,
did not include international jurisdictional issues. Both cases involved American
citizens prosecuting other Americans, who were both explicitly subject to American
territorial control.

3.7DATA PROTECTION ON INTERNET

Purchasing directories, security cameras, cell phone monitoring, wiretapping,

manipulation of medical records, genetic profiling, and other practices have
jeopardized anonymity, the most basic civil right. Since servers regularly record
information about users’ e-mail and web surfing activities, Internet service providers

23
Darrel C. Menthe, Jurisdiction in Cyberspace: A Theory of International Spaces, 4 Mich. Telecomm. & Tech. L.
Rev 69, 72(1998)
24
Religious Technology Center v Netcom, 907 F. Supp. 1367 (N.D. Cal 1995).
25
Playboy Enterprises v Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).

26
can provide a lot of information about them. The European Court of Justice (ECJ)
handed down decisions in four cases in November 2004 concerning the
interpretation of the EU Directive on the Legal Rights of Databases, which gives the
maker of a database a sui generis database privilege (as opposed to copyright)
where there has been a substantial investment in either the acquiring, verification or
display of the database’s contents.
Now GDPR is the new development with respect to data protection. The General
Data Protection Regulation (EU) 2016/679 (GDPR) is a regulation in EU law on data
protection and privacy in the European Union (EU) and the European Economic
Area (EEA). The GDPR's primary aim is to give individuals control over their
personal data and to simplify the regulatory environment for international business
by unifying the regulation within the EU. Superseding the Data Protection Directive
95/46/EC, the regulation contains provisions and requirements related to the
processing of personal data of individuals (formally called data subjects in the
GDPR) who are located in the EEA, and applies to any enterprise—regardless of its
location and the data subjects' citizenship or residence—that is processing the
personal information of individuals inside the EEA.
In India the Personal Data Protection (PDP) Bill, 2019 is the India’s first attempt to
domestically legislate on the issue of data protection.The Bill derives its inspiration
from a previous draft version prepared by a committee headed by retired Justice B N
Srikrishna.

3.8RECENT CASES ON INTERNET JURISDICTION

A French court 26 recently took control over Yahoo, an American internet news
company, and ordered it to delete web sites containing Nazi memorabilia, which is
illegal in France but legal nearly anywhere else. In a separate case 27, a British court
found a British citizen responsible for sharing images on an American web server
that were deemed indecent in the UK but not in the US.
In the case of United States v Galaxy Sports 28, an American court found the
president of an Antigua-based gaming corporation responsible for soliciting and

26
LICRA, French Union of Jewish Students v Yahoo Inc USA, Yahoo France, Tribunal de Grande Instance de
Paris, Interim Court Order, November 2000.
27
R v Waddon [2000] All ER (D) 502.
28
United States v Galaxy Sports, US Department of Justice, (28 Feb 2000),
http://www.usdoj.gov/criminal/cybercrime/ cohen.htm (8 March 2010).

27
taking bets from Americans over the Internet, notwithstanding the fact that this
principle may be harmful to the principles of comity, sovereignty, and economic ties
in the era of free trade. In the lack of a long-term solution to the hydra-headed
problems arising from the integration of more and more gadgets into the cyber world,
a temporary solution must be sought. The United States District Court for the District
of Virginia recently found that it had “In rem Authority” over domain name registrants
residing in other countries who were guilty of cyber squatting in Virginia. It was not a
contentious situation. Summary judgment was given to the appellant, setting a high
bar for the application of the US Anti-Cybersquatting Act and the authority of US
courts over international cyber squatters. The claimants in this lawsuit, Atlas Copco
AB and Atlas Copco North America LLC 29, were the owners of a registered
trademark in the United States. Atlas Copco filed a complaint against the defendant’s
domain names: Atlascopcoiran.com, Atlascaspian.com, Atlascaspian.net,
Atlascaspian.org, Atlascaspian.biz, Atlascapianir.com, Atlascaspianiran.com,
Atlascap1an.us, Atlascapian.cc, Atlascaspian.tv, and Atlas-caspian.com, alleging
that the defendant’s domain names: Atlascopcoiran.com, AtlascaspianThese domain
names’ registrants tended to be from Iran, Afghanistan, or India. Nonetheless, the
domain name registries were based in Virginia and were subject to the jurisdiction of
this Court. Long-arm authority was not activated because the registrants did not
have adequate connections with the department. Citing Continental Airlines Inc v
ContinentalAirlines.com 30, the Court reasoned that it had in rem authority over the
defendants. The Anti-Cybersquatting Act has now been shown to have the tentacles
to capture cyber squatters finding paradise in international jurisdictions, and this
concept should be embraced and emulated by other countries as well.

3.9LET’S SUM UP

We learned an outline of some terminology and legal issues relating to cyberspace in

this chapter, and it then goes on to address the four clusters, including copyright,
data security, trademarks, and domain names, with a focus on how conventional
jurisdictional rules are being extended to jurisdiction in cyberspace root cases.

3.10FURTHER READING

29
Atlas Copco v AtlasCopcoiran.com, 533 F. Supp. 2d 610 (ED Va. 2008).
30
Continental Airlines Inc v ContinentalAirlines.com, 390 F. Supp2d, 507 (E.D. Va. 2005).

28
 CompuServe Inc v Patterson, 89 F.3d 1257, 39 U.S.P.Q.2d (BNA) 1502 (6th
Cir 1996).
Zippo Manufacturing Co v Zippo Dot Com Inc, 952 F. Supp. 1119 (W.D. Pa.
1997).
LG Berlin 97O193/96 (Nov. 20, 1996), aff’d, KG, 5U659/97 (March 25, 1997).
Citigroup Inc v City Holding Co, 97 F. Supp. 2d 549 (S.D.N.Y. 2000).
Mink v AAAA Dev LLC, 190 F.3d 333 (5th Cir. 1999).
Bensusan Restaurant Corp v King, 937 F. Supp. 295 (S.D.N.Y. 1996).
Tech Heads Inc v Desktop Serv 105 F. Supp. 2d 1142 (D. Or. 2000)

3.11CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is internet?
The Internet is a global information system that I is logically connected by a globally
unique address space based on the Internet Protocol (IP) or its subsequent
extensions/follow-ons; (ii) can support communications using the Transmission
Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-
ons, and/or other IPcompatible protocols; and (iii) provides, uses or makes
accessible, either publicly or privately, high level services layered on the
communications and related infrastructure.
2. What are the categories of jurisdiction in International law?
In international law, there are three forms of jurisdiction that are commonly
recognized. There are: (1) the power to prescribe; (2) the power to enforce; and (3)
the power to adjudicate.

3.12ACTIVITY

Provide a detailed account of International jurisdiction under cyber space with

respect to Internet. Substantiate it will relevant case laws. (2000 to 2500 words)

29
Unit 4: CYBERSECURITY AND
THE THEFT OF INTELLECTUAL 4
PROPERTY ONLINE
Unit Structure
4.1 Learning Objectives
4.2 Introduction
4.3 Protocols
4.4 Key documents
4.5 Current issues
4.6 Partnership and actions to combat cybercrime
4.7 Future outlook
4.8 Let’s sum up
4.9 Further reading
4.10 Check your progress: Possible Answers
4.11 Activity

30
4.1 LEARNING OBJECTIVE

In this chapter we will learn-

The strategies to ensure cyber security and its related aspects with IPR.
The relevance of international measures to make safer cyber space.
The steps needs to be taken in form of policy formation to protect intellectual
rights.

4.2 INTRODUCTION

Digital globalization has exploded in recent years, linking millions of people through
information and communication technology (ICTs). Borderless trade options are
becoming more prevalent, which is usually a good thing. Increased adoption of ICTs,
on the other hand, is linked to higher rates of cybercrime. According to the United
Nations Office on Drugs and Crime (UNODC), the number of internet-connected
computers will outnumber humans six to one by 2020. This hyper-connectivity would
inevitably lead to higher rates of cyber crime, as well as a correlation between
traditional crime and the digital world. It is difficult to assign a territorial authority to
cybercrime because of the multinational existence of ICTs. In order to adequately
counter cybercrime in regards to intellectual property, the international community
must collaborate and cooperate. 31
Intellectual property rights are “legal rights that cover innovations and/or discoveries
arising from intellectual activity in the technological, science, literary, or artistic
fields,” according to the International Telecommunication Union (ITU). Intellectual
property rights encompass a wide range of topics, from sculpture, the Olympic
Rings, and research on microorganisms. For a set amount of time, these rights
normally grant the artist full use of their work.
Cybercrime is difficult to define since it is so context-dependent. According to the
UNODC, the spectrum of computer-related actions of personal, financial, or
intellectual advantage or damage is so vast that combining them into a single definite
and encompassing word is difficult. Cybercrime can damage any kind of online

31
Loza de Siles, Emile. (2015). Cybersecurity and Cybercrime: Intellectual Property and Innovation. American
Bar Association / Landslide. 2015. 6. 10.2139/ssrn.2644365.

31
property, making it a major problem for businesses and governments alike. While it
can be difficult to describe cybercrime, its effect is undeniable. Cybersecurity threats
have resulted of a trillion-dollar industry in lost intellectual property due to imitation
and pirated products. The method of determining the extent of cybercrime is
extensive and complex. When attempting to detect, counteract, and defend against
cybercrime, scale, motive, meaning, and jurisdiction must all be taken into account.
Because despite the exponential advancement in technology, the international
community is also grappling with the effects of cybercrime on global businesses and
property holders. 32
Theft of intellectual property costs billions of dollars to copyright holders and legal
companies all over the world. Theft of intellectual property further threatens invention
and ingenuity by discouraging copyright due to the pervasive existence of this illegal
enterprise. It also puts consumers' health and welfare at risk by overwhelming the
market with counterfeit pharmaceuticals. By leveraging financial benefits from
counterfeit drugs, these activities help finance transnational organized crime
networks. Aside from the direct consequences of intellectual property piracy, there
are a slew of other problems to consider. These include the theft of personal identity
and financial records, the reduction of commercial market advantages, reduced
product or service viability, and the failure of a business attributable to counterfeit
goods. 33 It also results in significant financial losses for victims after the reality.
Intellectual property piracy has a long-term effect on businesses and states, owing to
court fines, cybersecurity lawsuits, missed contracts, and public relations expenses.
The Special Event on Cybersecurity and Development was organized in 2011 by the
Economic and Social Council, in collaboration with the United Nations Department of
Economic and Social Affairs and the International Telecommunication Union. This
panel discussion aimed to raise awareness of cybercrime at the foreign policy level,
recognize best practices for fostering a cybersecurity community, and consider
strategies for a global response to cybercrime. Cybercrime is multifaceted, and the
cybersecurity panel recognized the value of cooperation among Member States, the

32
See, e.g., The Estonia Model: Why a Free and Secure Internet Matters, WOODROW WILSON INT’L
CENTER FOR SCHOLARS (Apr. 21, 2015), http://www.wilsoncenter.org/event/the-estonia-modelwhy-free-
and-secure-internet-matters.
33
See Improving Critical Infrastructure Cybersecurity, Exec. Order No. 13,636, 78 Fed. Reg. 11,739 (Feb. 19,
2013).

32
private sector, civil society, and law enforcement to develop a holistic solution to the
problem.

4.3PROTOCOLS

Any breakthrough in the world of innovation faces a variety of threats. The web is
one such vulnerability that has engulfed the actual commercial centre and
transformed it into a virtual one. In order to secure the corporate interest, it is
important to establish a powerful property management and insurance instrument,
bearing in mind the huge amount of business and commerce that takes place in
cyberspace. Today, any company must develop a powerful and widespread IP
management system and insurance protocol. The robotic world’s constantly
approaching threats will, therefore be able to be tested and contained. 34
There could be important protocols for ensuring cybersecurity, which include the
following –
Creating a Secure Cyber Ecosystem
Creating an Assurance Framework
Empowering Open Standards
Strengthening the Regulatory Framework
Creating IT Security Mechanisms
Securing E-administration Services
Assuring Critical Information Infrastructure

4.4KEY DOCUMENTS

The Copyright Treaty of the World Intellectual Property Organization (WIPO) is the
cornerstone text in terms of intellectual property rights (WCT). The first is that writers,
musicians, and recording producers shall have the freedom to store their works in
digital form. The owner's right to disseminate work digitally to the public through the

34
See Cybersecurity: How to Keep You and Your Clients from Becoming Tomorrow’s Headlines, A.B.A. (Aug.
1, 2015), http://www.americanbar.org/news/abanews/aba-newsarchives/2015/08/cybersecurity_howt.html;
Matthew Goldstein, Citigroup Report Chides Law Firms for Silence on Hackings, N.Y. TIMES, Mar. 26, 2015,
http://www.nytimes.com/2015/03/27/business/dealbook/citigroup-report-chides-law-firms-for-silence-
onhackings.html?_r=0 (discussing internal April 2015 report by Citigroup’s Cyber Intelligence Center).

33
internet is the second concept. The third step is to use appropriate legal remedies to
shield these multimedia works against unauthorized copying, sharing, or selling. The
WIPO's Performances and Phonograms Treaty also acts as an outline of how to
compose an intellectual property document for an emerging medium and how to deal
with the interests of interactive media beneficiaries.
The UN Group of Governmental Experts on Developments in the Field of Information
and Telecommunications (GGE) is a UN-mandated working group that has
contributed to the development of the global cybersecurity agenda and adopted the
concept of international law applying in digital contexts. Each meeting is followed by
the development of a consensus paper, which has been lauded for its diversity of
views, advice, and coverage of contentious topics. The group's recommendations for
confidence-building interventions, capacity-building efforts, and infrastructure
security are included in each study. Although the GGE's membership is
comparatively limited, the association has made considerable strides in developing
international cybercrime and cyber security norms.
The ITU convened the World Summit on the Information Society (WSIS) to facilitate
equal access to the benefits of ICTs, such as e-commerce, e-governance, e-health,
education, economic growth, diversity, and environmental conservation. The Geneva
Declaration of Principles and Geneva Plan of Action from WSIS' first and second
phases, respectively, the Geneva Declaration of Principles and Geneva Plan of
Action from 2003 and the Tunis Commitment and Tunis Agenda for the Information
Society from 2005, place a strong emphasis on growth, capacity-building, openness,
and confidence-building steps to increase access to ICTs and cybersecurity. 35
The Geneva documents are foundational documents that set out the international
community's priorities, challenges, and objectives. The Tunis papers are more
actionable in general, as they include detailed strategies for carrying out the
obligations outlined in the Geneva Declaration of Principles and Plan of Work. The
Council of Europe's Convention on Cybercrime is a valuable regional paper on
cybercrime and its prevention. This is the first multinational treaty dealing specifically
with cybercrime. It specifically addresses patent theft, computer-related fraud, and
network protection breaches. The key goal of this convention is to pursue a universal

35
Cyber Crime: Modernizing Our Legal Framework for the Information Age, Hearing Before the Subcomm. on
Crime & Terrorism, of the S. Comm. on the Judiciary, 114th Cong. 3 (2015) (statement of David M. Bitkower,
Deputy Assistant Att’y Gen., Criminal Div., Dep’t of Justice), http://www.justice.gov/opa/file/627486/download

34
crime reduction strategy aimed at preventing cybercrime, especially through the
adoption of relevant legislation and the promotion of international cooperation.

4.5CURRENT ISSUES

While the international community has many means to fight cybercrime, there are
few manuals and instruments to direct their acts. Currently, the proposed
international system for cybercrime in relation to intellectual property legislation is
used in the broader definition of cybersecurity. The ITU is a member of the
International Multilateral Partnership Against Cyber Threats (IMPACT), which is the
world's biggest cybersecurity coalition. It's a networking forum for sharing
cybersecurity best practices. IMPACT and the ITU collaborate to bring together the
expertise of government, academics, business executives, and individuals to ensure
global cybersecurity.The ITU has charged IMPACT with providing Member States
with access to cyber threat experience, services, and infrastructure. It also aids UN
organisations in safeguarding their information technology resources.
Challenges of promoting cybersecurity

Because of the complexities of cybersecurity, the international community faces

many obstacles in combating cybercrime in relation to intellectual property rights.
There are several issues that the international community as a whole must solve, as
well as issues that Member States face on an individual basis. When a cybercrime
happens, determining the magnitude of the damage is virtually impossible. This is
attributed to a scarcity of accurate data and the absence of mechanisms to collect it.
The fact that this is a transnational problem adds to the difficulty of solving such
crimes. Huge economic inequalities exist between developing and developed
nations, making it difficult for them to catch up with their advanced equivalents.
Developing countries also lack the resources to fight cybercrime.
Since developed countries have little detection systems, they may become "safe
havens" for cyber criminals. The lack of collaboration and collaboration between
developed and developing countries exacerbates the problem. The ITU has created
a guide for developed countries called Understanding Cybercrime: A Guide for
Developing Countries in order to assist in tackling the issues that the international
community is facing. Legislation, strengthened law enforcement, capacity building,

35
and preparation are some of the national and multilateral solutions to such problems.
Such policies, on the other hand, cannot be implemented without adequate crime
prevention and criminal justice programs, as well as the human capacity, financial,
and technological tools needed to tackle cybercrime. Member States seeking
assistance in areas such as access to ICTs and establishing better cybersecurity are
supported by the ITU. - case is treated independently and begins with a review of the
country's current ICT situation. The ITU will then include a customized guide to help
the Member State achieve its ICT objectives. These roadmaps tailor capacity-
building plans and provide guidance on policies that can be used to improve
cybersecurity. 36

4.6PARTNERSHIPS AND ACTION TO COMBAT

CYBERCRIME

A lot of work has been done on this subject in the private sector and in academia. In
addition, private sector organisations see cybercrime involving intellectual property
as a larger concern than Member States. There is now a wide movement within
academia to not only consider cybercrime phenomena, but also to create effective
technologies to fight them. Non-profit organisations such as the Knowledge
Technology-Information Exchange and Analysis Center, which aims to improve
cybersecurity for businesses by fostering cooperation, intelligence sharing, and
incident management, are now helping to tackle cybercrime.
This not only helps the private sector escape intellectual property piracy, but it also
allows various actors to learn and exchange best practices, preventing potential
abuse by both parties, public and private. Public-private partnerships are also
essential in the development of cybersecurity strategies. These collaborations are
critical for fostering cybersecurity and development, particularly in developing
countries. Private businesses frequently have the capacity and capabilities to more
efficiently fight cybercrime while also fostering benefits in the host country, such as
economic growth and human resource development.

36
Nakashima, Ellen et. al. “Report: Cybercrime and espionage costs $445 billion annually.” The Washington
Post. June 9, 2014. https://www.washingtonpost.com/world/nationalsecurity/report-cybercrime-and-espionage-
costs-445-billionannually/2014/06/08/8995291c-ecce-11e3-
9f5c9075d5508f0a_story.html?utm_term=.2d356b0ec666.

36
Cybercrime against intellectual property is considered a piracy problem by the
International Police Organization (INTERPOL). Counterfeiting, piracy, and smuggling
for tax avoidance are all considered illegal merchandise trafficking. As a result,
INTERPOL will use all of its anti-trafficking capabilities to track down, interrupt, and
shut down these activities. Supporting regional and global activities, capacity
development and preparation, raising awareness, and offering legal assistance to
Member States on request are INTERPOL's key activities against intellectual
property cybercrime. 37

4.7FUTURE OUTLOOK

On a global scale, there have been several debates about the implementation of an
international conference on cybersecurity. In a perfect world, this convention will aim
to harmonize national rules on cybercrime, such as copyright theft, hacking, and
network security breaches. In order to promote the existence of binding treaties and
further guidance, the GGE has also suggested the formation of a successor group. 38
The treaty will also support and reinforce efforts to fight cybercrime more quickly and
efficiently than in previous years. Given the complexities of cybercrime and ICTs,
however, such a treaty would almost certainly be complicated and take careful
thinking and consideration. Professional assistance promotion, facilitation, and
funding will further enhance those efforts, meaning that all Member States have the
tools they need to mitigate the effect of cybercrime on intellectual property security.

4.8LET’S SUM UP

In this chapter, we have learned the possible steps, which can be taken to manage
cyber security. Additionally, we have also analyzed the responsibility of international
organisations and governmental institutions in ensuring cyber security and its
aspects related to intellectual property rights.

37
Passman, Pamela. “How to Protect Intellectual Property: from Fair Trade to Legal Trade.” Foreign Affairs.
February 27, 2013. https://www.foreignaffairs.com/articles/2013-02-27/howprotect-intellectual-property.
38
“The Information Technology – Information Sharing and Analysis Center.” IT-ISAC. July 16, 2017.
https://www.it-isac.org/.

37
4.9FURTHER READING

Taubman, A. (2009), ‘International Governance and the Internet’, in: L.

Edwards and Ch. Waelde (eds), Law and the Internet, 3rd ed, Oxford and
Portland, Oregon: Hart Publishing, pp. 3-44
Torremans, Paul (2005), ‘Authorship, ownership of right and works created by
employees: which law applies?’, 27(6) European Intellectual Property Review,
220- 224
Vivant, Michel and Bruguière, Jean-Michel (2012), Droit d’auteur, 2nd ed.,
Paris: Dalloz
Wilson, Caroline (2009), ‘Domain Names and Trade Marks: An Uncomfortable
Interrelationship’, in: L. Edwards and Ch. Waelde (eds), Law and the Internet,
3rd ed, Oxford and Portland, Oregon: Hart Publishing, pp. 311-333.
Rahmatian, Andreas (2009), ‘Dealing with rights in copyright-protected works:
assignments and licences’, in: E. Derclaye, Research Handbook on the
Future of EU Copyright, Cheltenham: Edward Elgar, pp. 286-316
Rahmatian, Andreas (2011), Copyright and Creativity. The Making of Property
Rights in Creative Works, Cheltenham: Edward Elgar

4.10CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. Define Cybercrime
Cybercrime is difficult to define since it is so context-dependent. According to the
UNODC, the spectrum of computer-related actions of personal, financial, or
intellectual advantage or damage is so vast that combining them into a single definite
and encompassing word is difficult. Cybercrime can damage any kind of online
property, making it a major problem for businesses and governments alike. While it
can be difficult to describe cybercrime, its effect is undeniable.
2. What could be possible protocol to ensure cuyber security?
There could be important protocols for ensuring cybersecurity, which include the
following –
Creating a Secure Cyber Ecosystem
Creating an Assurance Framework
Empowering Open Standards

38
 Strengthening the Regulatory Framework
The Creating IT Security Mechanisms
Securing E-administration Services
Assuring Critical Information Infrastructure

4.11 ACTIVITY

In what ways might cybersecurity attacks on protected IP impact your Member

State’s social and economic landscape? (Word count- 2000 to 2500)

39
 Block-2
COPYRIGHT AND CYBER LAW

40
Unit 1: COPYRIGHT IN 1
CYBERSPACE
Unit Structure
1.1 Learning Objectives
1.2 Introduction
1.3 Copyright and its treatment in cyber space
1.4 Peer to Peer file sharing
1.5 Internet Service Provider Liability
1.6 Let’s sum up
1.7 Further reading
1.8 Check your progress: Possible Answers
1.9 Activity

41
1.1 LEARNING OBJECTIVE

In this chapter, we will learn-

The relationship between copyright and internet.
The concepts of downloading, Peer-to-Peer sharing and other related aspects
of copyrights on cyber space.
Various legal provisions governing copyright on internet.

1.2INTRODUCTION

Intellectual property rights are critical to the country’s socio-economic and cultural
growth. The evolution of the internet is humankind’s greatest scientific
accomplishment. The internet’s unique capability to share insights, thoughts, and
material in the form of images, graphs, and videos to any corner of the world in the
same content in a fraction of a second. Infringement is on the rise as the usage of
internet IPR grows. Linking, deep linking, uploading-downloading, copy-paste, and
P2P file-sharing applications, which are often found on the internet, all require
copyright problems. Protecting copyright in cyberspace is a huge problem for us
because our copyright legislation, the Information Technology Act, does not relate to
the changing new world because it is impossible to track down criminals in
cyberspace due to the internet’s extraterritorial authority. India is a signatory to the
WIPO Internet Treaty, and the Copyright Act was amended in 2002 and 2012 to
address internet concerns in order to satisfy international requirements. This
provision, however, was insufficient to address the question of copyright rights in
cyberspace. Copyright infringement poses a significant danger to all industrial
sectors, including copyright, electronics, music, and the film industry, among others,
and has a negative impact not only on owners’ rights but also on the nation’s
economy. As a result, it is vital to fight internet piracy by maintaining effective
copyright rights in cyberspace, which would automatically stimulate mankind’s
innovation. Around the same time, general knowledge and information about
copyright are critical.
Patents, trademarks, architectural design, copyright, and proprietary documents all
fall under the umbrella of intellectual property, which is a globally recognized

42
principle. Copyright is a crucial right in all forms of intellectual property protection
because it prevents the illegal copying of original work. In the twenty-first century, the
invention of new media has brought about fundamental improvements. Because of
its attributes such as storing power, speed, intercreativity, interconnection, and
operation beyond territorial boundaries, the internet presents many opportunities and
challenges for copyright enforcement in cyberspace. It is very possible in cyberspace
to take material from one platform and change and replicate it on another without
revealing one’s identity. Copyright Act, 1957 is revised from time to time for the
defence of copyright, the most recent change being in 2012 to satisfy national and
international specifications. While the Information Technology Act of 2002 exists,
these statutes are unable to preserve copyright in cyberspace.

1.3COPYRIGHT AND ITS TREATMENT IN CYBER SPACE

Copyright is similar to other property rights, such as title, in that the landowner owns
everything on the land, from the sky to the grass. Copyright works on the same
concept but with certain restrictions. 39 Copyright compliance in cyberspace is
hampered by the use of computers, the internet, and streaming, copying, copy-cut-
paste, deep linking, and peer-to-peer file sharing. The following are the problems
posed in defence of copyright in cyberspace:
Uploading & Downloading
Copyright infringement occurs when someone uploads proprietary works without
permission. The standard of illegally downloaded songs, videos, and video games is
bad, and it is punishable under India’s Copyright Act. Even if he has not earned any
financial benefit, the individual who posted the content is responsible. When an
uploader uses his imagination to update, modify, or amend copyrighted content, he
assumes responsibility. Illegal downloading is most common in the film, recording,
music, gaming, and software industries. Piracy is a major issue in India’s media and
film industries, with copyright piracy costing the country $4 billion per year. Only
when a user prejudicially distributes, exhibits or lets for selling or employ copyrighted
content without sufficient consent commits an offence, according to Justice Gautam
Patel of the Bombay High Court.

39
http://nopr.niscair.res.in(Journal of Intellectual Property Rights,Vol.19,Sep.2014,pp307,Exploring Sovereign
Immunity in Copyright Infringement:How India can learn from the Global Experience)

43
Linking
The world today is a worldwide web. The website provides a vast volume of material
in the form of sentences, images, illustrations, audio, and other media. As a result,
the copyright statute covers the website. The site’s primary focus is on the electronic
publication of this content. Designing or creating a website necessitates a significant
amount of talent, labour, time, resources, and mental effort. As a result, preserving
the website’s intellectual property is important. Linking allows people to easily switch
from one place to another and view information in a limited amount of time. It informs
people about the life of work by including a clear website address. Linking is a
feature that allows you to visit a third-party website by clicking on a location on the
linking site without having to enter any location information or using a search
engine. 40 Links are normally outlined, underlined, or conspicuous text or images.
There are two ways of linking 41:
1. Surface linking: Surface linking happens when a site’s home page is linked.
2. Deep linking: Deep linking is where a connection skips the home page and goes
directly to an internal page inside a favourite website. Only in regard to ‘Deep
connecting’ do legal questions emerge, as this technology aids in the distribution of
other people’s artistic content. Copyright infringement is described as reproducing,
issuing, or transmitting work to the public without authorization or consent, according
to Sec.14,51. Deep linking sites are not specifically responsible for infringement
since the duplication of work is performed by the individual who visits the linked
website by the connection, not by the linking site.
Having any job available for the public to view, read, or enjoy directly or by any
means of showing is considered contact to the public under Sec.2(ff). The Copyright
Act does not expressly prohibit deep linking, but the phrase “by any means of view,”
as defined in Sec. 2(ff), includes sharing of a web site’s contents over the internet.
Communication of work without consent is considered copyright infringement under
Section 51. It means that deep linking without the owner’s consent is a kind of
copyright infringement. Contributory Copyright Infringement happens when someone
makes a link that is likely to facilitate unauthorized copying of copyrighted content,

40
Lw relating to computers Internet & E-commerce,Universla Law Publishing Co.New Delhi-
India,AuthorNandan Kamat,pp197
41
Legal Dimensions of Cyberspace,Edited by S.K.Verma& Raman Mittal,Indian Law Institute,New Delhi,pp-
119.

44
and the person that created the link has cause to know about the unauthorized
copying. 42 Some websites, such as Amazon.com, welcome linking or deep linking
because it enhances traffic, advertisement prices, and sales. 43
Linking, also known as deep linking, is a technique for gaining easy access to
information. Bixee.com, without the consent of Naukari.com, allowed users to access
these jobs directly on its website, bypassing Naukari.com’s home page, resulting in
financial losses for Naukari.com. On the grounds of copyright violation, an Indian
court barred Bixee.com from deep-linking, copying, uploading, and reproducing
material from Naukri.com’s website. In a nutshell, deep linking without authority
entails the electronic publishing of information, copying, and contact to the public
without consent, all of which constitute copyright infringement.

1.4PEER TO PEER (P2P) FILE SHARING

In general, file sharing refers to the electronic sharing of multimedia media (music,
audio recordings, movies, tv shows, games, and computer applications, for
example). Peer-to-peer (P2P) is a means of sharing files without the use of a
middleman server. P2P technology was not intended to make copyright piracy
simpler, but it is now being used to distribute unlawfully copyrighted content. Some
P2P technologies, such as Napster, Gnutella, and Kazaa, are well-known and
enable users to share, distribute, and update files across the internet without
sacrificing efficiency. MP3 technology entails compressing sound recordings to a tiny
size and distributing them over the internet in a limited period of time. The growth of
MP3 necessitated the creation of a mechanism for transferring files over the internet,
which led to the creation of Napster. 44 Only music files, especially mp3 files, were
associated with Napster. Following the installation of the Napster program, you were
directly linked to Napster’s central server, which only included a list of music files
accessible on Napster members’ computers.
Simply type the name of an album or an artist to get a list of what’s available, and
then stream music from another user’s machine who is online in a matter of seconds.
As a secondary infringer, the court ordered Napster to cease distributing stolen

42
http://smallbusiness.findlaw.com
43
Legal Dimensions of Cyberspace,Edited by S.K.Verma& Raman Mittal,Indian Law Institute,New Delhi,pp-
119.
44
1P2PNetworks : Online Piracy of Music,Films& Computer Software,Journal of Intellectual Property
Rights,Vol9,Sep.2004,pp442 ,Author-Raman Mittal (Keith Taylor,Piracy in Cyber space: The battle over digital
music on internet,http://guslaw.gus.edu/lawand/papers/fa02/taylor)

45
music and close down its website. In India, anybody operating a network similar to
Napster is liable under Sections 14 and 51(a)(ii) of the Copyright Act, 1957. It
resulted in the collapse of Napster and the rise of stronger peer-to-peer networks.
Every individual who permits any location to be used for the transmission of the work
to the public where such communication constitutes an infringement is liable for
copyright infringement, according to Sec.51(a)(ii). The word “any place” includes
both physical and virtual places. 45 Infringement occurs as someone makes copies of
a work or communicates the same work to the public, according to Sec.14.
In the case of Napster in India, someone who downloads and installs the program is
making copyrighted work accessible to any member of the community who has the
software installed on his computer. It suggests that Napster is promoting online
contact and that transmitting proprietary content to the public is infringing under Sec.
14. The person who copies a patented work file is reproducing the work without the
permission of the copyright owner. As a result, he has committed patent theft. P2P
technology, in short, poses a challenge to the copyright industry, which includes the
music, sound capture, and software industries, because it allows for the copying and
sharing of copyrighted works over the internet.

1.5INTERNET SERVICE PROVIDER LIABILITY (ISP)

When we first began using the internet, the issue of ISP responsibility for copyright
infringement emerged. ISPs are businesses or organizations that allow clients to link
to the internet. In India, ISPs such as Airtel, Idea, and Telenor offer internet
connections and other connectivity services to users. Any concerns have been
raised about ISP responsibility for copyright violations, such as whether ISPs are
held responsible for criminal acts committed by their users. And to what degree was
it found to be infringing? Usually, copyright owners sue ISPs for enforcing their
copyright because ISPs are more financially capable of paying fines than actual
private users, and that has a deterrent impact on holding ISPs responsible. When a
website has several users who are all allowed to upload or download content to and
from that website, if you take action against one of them, another user can infringe
the following day. However, if you take legal action against the ISP, you can uninstall

45
Legal Dimension of Cyberspace,Edited by S.K.Verma& Raman Mittal,Indian Law Institute,New Delhi,pp142

46
proprietary content from the website and advise their subscribers not to post illegal
content. So, since the ISP dominates the network, it is very straightforward to protect
copyright piracy by suing him personally. 46
Different laws apply to ISP liabilities, including penal law, tort law, patent law,
trademark law, and unfair competition law. There is no clause of the Copyright Act of
1957 that addresses the question of ISP liability. Sec.51(a)(ii) states that whenever
any person permits for profit any place to be used for the transmission of work to the
public where such communication constitutes an infringement of copyright unless he
was not aware and has no reason to suspect that such communication would
constitute an infringement of copyright.
Since computer servers and telecommunication facilities fall under ISP, which is a
dimension of cyberspace, the term “every location” includes cyberspace, which
contains ISP. So, under Sec. 51(a), ‘any position’ includes ISP (ii). Another phrase is
“permits for profit,” which means that ISP profited financially from infringing practices.
So, if ISPs bill for their services and others are free, they are indirectly profiting from
advertisements. It ensures that by distributing or holding infringing content, the
above conditions of “permits for benefit” are met. Another condition is that they
should only be held responsible if they have knowledge that the content processed
or sent from their repositories is violating. If ISP satisfies all of the aforementioned
criteria, it is presumed that he is infringing on someone else’s copyright.
The Information Technology (IT) Act of 2000 contains rules on ISP liability. An
intermediary is specified in Sec. 79(a) of the IT Act as any person who receives,
stores, or transmits a message on behalf of another person or provides any service
related to that message. The Internet Service Provider (ISP) is a form of
intermediary. This provision, once again, restricts ISP’s responsibility under some
cases. According to this clause, an intermediary, such as a network service
company, is not responsible whether he may demonstrate that the crime or
contravention was done without his knowledge or that he used any fair attempts to
avoid it. Practically, ISPs perform a variety of roles in the delivery of material, and
their responsibility varies based on the sort of work they perform; otherwise, they
would be kept responsible for information for which they have no control or over
which they have never played any part. However, no statutes, including the

46
4 Legal Dimension of Cyberspace,Edited by S.K.Verma& Raman Mittal,Indian Law Institute,New
Delhi,pp152.

47
Copyright Act, have been amended to restrict the liability of ISPs. The IT Act only
allows ISPs to be found responsible for copyright violations if they offer filtering
services.

1.6LET’S SUM UP

In this chapter, we have learned the overview of some terms and legal aspects
related to cyberspace and copyright. Besides, we also learned various concepts
revolving around internet sharing, downloading, internet service provider liability etc.
We have also analyzed various legal provisions governing copyrights.

1.7FURTHER READING

Jonathan Franklin, “Intellectual Property Law,” Electronic Resource Guide,

American Society of International Law, last updated February 8, 2013,
accessed on August 2, 2013,
http://www.asil.org/erg/?page=iipl#id.juy3tsp3onkv.
Richard L. Hermann, Landing a Federal Legal Job: Finding Success in the
U.S. Government Job Market (Chicago: American Bar Association, 2011),
277.
Berkman Center for Internet and Society at Harvard University, “Overview of
Trademark Law,” accessed on August 2, 2013,
http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm.
Library of Congress, The Congressional Research Service:
www.loc.gov/crsinfo/

1.8CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is “any place”?

Since computer servers and telecommunication facilities fall under ISP, which is a
dimension of cyberspace, the term “every location” includes cyberspace, which
contains ISP. So, under Sec. 51(a)(ii) ‘any place’ includes ISP.
2. Explain “permit for profit”.

48
The term “permits for-profit” refers to the fact that ISP profited financially from
infringing practices. So, if ISPs bill for their services and others are free, they are
indirectly profiting from advertisements. It ensures that by distributing or holding
infringing content, the above conditions of “permits for benefit” are met.

1.9ACTIVITY

Explain Internet Service Provider Liability with relevant provisions of law. (2000 to
2500 words)

49
Unit 2: COPYRIGHT AND 2
INFRINGEMENT IN CYBERSPACE
Unit Structure
2.1 Learning Objectives
2.2. Introduction to Copyright Issues in Cyberspace
2.3. Online Copyright Violation
2.3.1. Caching
2.3.2. Plagiarism
2.3.3. Protection of database
2.3.4. Protection of computer software
2.4. Computer software and copyright law
2.5. Software licenses
2.5.1. Freeware licenses
2.5.2. Open source Licenses
2.5.3. Shareware
2.5.4. Demo ware
2.6. Let’s Sum up
2.7. Further Reading
2.8. Check your progress: Possible Answers
2.9. Activity

50
2.1 LEARNING OBJECTIVE

In this chapter, we shall be learning about-

Various forms of copyright infringement in cyber space.
Software protection and copyright laws
Various forms of licensing.

2.2 INTRODUCTION TO COPYRIGHT ISSUES IN

CYBERSPACE

The copyright’s aim is to inspire writers, composers, and directors to create original
works by giving them the exclusive right to print and publish them for the public
good. When the limited privilege, i.e., the copyright term, expires, the works become
public domain, and anybody can copy them without permission. Initial literature,
tragic, theatrical, creative, cinematographic video, sound recording, and computer
program are all protected by copyright. 47 Today, copyright is used in a wide range of
sectors, including the publishing and sale of books, magazines, and newspapers, the
manufacture and distribution of dramatic and artistic works for performances, the
printing of musical works and cinema, broadcasting, and so on. Copyrights, as
Intellectual Property, move more freely and rapidly from country to country than other
types of property. Copying copyright content has become much simpler due to
technical advances. As a result, copyright piracy has been difficult, if not impossible,
to regulate. Books, recorded tapes, video cassettes of videos, and electronic
programs can all be easily transported from one country to another, and thousands
of copies can be manufactured and distributed. Unauthorized home recordings of
radio and television programs have become popular around the world. 48
Digital media has made it possible to take material from one site, change it, or simply
reproduce it on another site, posing new problems for conventional interpretations of
individual rights and security. A publisher can be anybody with a PC (Personal
Computer) and a modem. It just takes a few mouse clicks to download, import, save,
convert, or create a derivative work. Since it includes text, images, and also audio
and video, a web page is equivalent to a print, a magazine, or a digital CD-ROM and

47
Dr. Farooq Ahmad, Cyber Law in India, New Era Law Publication, New Delhi, 2012, pg.no.28.
48
Available at www.wipo.int , visited on 15/02/2016.

51
would be liable for copyright protection. The creator of a copyrighted work has the
sole right to permit copying, preparation of derivative works, dissemination, and other
activities under copyright law. 49

2.3ONLINE COPYRIGHT VIOLATION

2.3.1 Caching:
Determining the distinction between private and public use is one of the most
fundamental copyright problems on the internet. The Indian Copyright Act, 1957
distinguishes between reproductions for general use and reproductions that can only
be achieved with the consent of the right holder. On the internet, the freedom to copy
poses a variety of constitutional questions. Because of the fundamental essence of
internet transmission, this is the case. Any stage of transmission involves
reproduction. Temporary copying (also known as caching) is an essential aspect of
the internet communication mechanism through which messages will not be able to
pass across the networks to reach their intended destinations. According to Indian
law, copying must be in a tangible way, but it also requires “storing it in every format
through electronic means,” making caching a copyright violation.
2.3.2 Plagiarism:
Copying copyright content has become much easier, thanks to technological
advancements. As a result, copyright piracy has been difficult, if not impossible, to
regulate. It entails using someone else’s work without giving them credit, even
though it were one’s own original work. It is regarded as an ethical violation that may
jeopardize one’s intellectual standing and honesty. Plagiarism is possible without
infringing on another’s copyright, and infringing on another’s copyright is possible
without plagiarizing. Plagiarism and copyright violations can all occur at the same
time. Books, videos, films, and music can all be easily replicated, and thousands of
copies can be made and circulated. Digital media has made it possible to copy
material from one platform, change it, or literally replicate it. The standard view of
human rights and security under the Copyright Act has been thrown into disarray as
a result of this.
2.3.3 Protection of Database:
The Indian Copyright Act 1957 protects “Databases” as “Literary Works” under
Section 13(1) (a) of the Act, which specifies that copyright in original literary,

49
V.K. Ahuja, Intellectual Property Rights in India, Lexis Nexis Butterworth's Wadhwa, Nagpur, 2009,at page
nos.15-16

52
theatrical, musical, and artistic works shall exist in India. For the first time, the word
“computer database” was established in the Information Technology Act of 2000. An
individual who breaches the copyright and cyberspace norms is liable to pay
compensation to the aggrieved party up to one crore rupees under Section 43 of the
I.T. Act 2000. In addition, Section 66 of the Income Tax Act of 2000 imposes criminal
penalties in certain cases.
2.3.4 Protection of computer software:
A computer programme is described as a “collection of instructions transmitted in
words, codes, schemes, or some other type, including a machine readable media,
capable of causing a computer to perform a particular task or achieving a particular
result,” according to section 2(ffc) of the Copyright Act. Within the scope of the
Copyright Act, computer software is a “computer application.” Computer programs
now count for copyright protection, as well as other forms of Intellectual Property
Rights protection, under the T.R.I.P.S (Trade-Related Aspects of Intellectual
Property Rights). This programming programs are also covered by the Copyright
Act’s copyright protection. Under the Copyright Act, computer programs are included
in the scope of literary content.
The owner of computer software has a variety of rights, including the ability to issue
software licenses. Freeware licenses, open-source licenses, demoware licenses,
and other forms of software licenses exist. The owner of a software patent has the
freedom to reuse and render as many copies of his work as he wants. Second, he
has the possibility of showing his program on the website, which will be called public
view. He also has the rights to sell, rent, move, update, and change his proprietary
software. Without the owner’s consent, no one can use a copyrighted work for
personal gain.
However, copyright infringement happens when someone uses a patented work for a
commercial reason or to rob the author of income. Despite the fact that the software
copyright owner has certain proprietary rights, they are not absolute and are subject
to certain restrictions and exceptions in order to protect and preserve the public
interest, including that of software users.
In certain socially desirable circumstances, such as literary, dramatic, musical, or
artistic work for private use, including study, criticism, or review, the use of the
copyrighted work is allowed even without the author’s permission in order to use the
computer program for the purpose for which it was supplied or to make back-up

53
copies purely as temporary protection against loss, destruction or damage in order
only to utilize the computer program for the purpose for which it was supplied.

2.4COMPUTER SOFTWARE & COPYRIGHT LAW

A computer programme is described as a “collection of instructions transmitted in

words, codes, schemes, or some other type, including a machine-readable media,
capable of causing a computer to perform a particular task or achieving a particular
result,” according to section 2(ffc) of the Copyright Act. Within the scope of the
Copyright Act, computer software is a “computer application.” These programming
programs are also covered by the Copyright Act’s copyright protection. Under the
Copyright Act, computer programs are included in the scope of literary content. The
owner of computer software has a variety of rights, including the ability to issue
software licenses. Software licenses can be of various types.

2.5SOFTWARE LICENSES

2.5.1 Freeware licenses:

Freeware is proprietary computer software that is distributed for download and for an
unspecified period of time. Freeware licenses are typically developed and distributed
for free by software developers who wish to give back to the community. There are,
however, certain restrictions. For instance, if you’re looking for a unique way to
express yourself, try A freeware license that is nonexclusive, non-transferable, and
has a restricted scope of use. Many freeware licenses stipulate that the applications
cannot be used for commercial purposes. The license is non-exclusive, and it does
not grant any operator exclusive privileges. Furthermore, the warrant is non-
transferable, and the licensee is not permitted to assign any rights to a third party.
2.5.2 Open-Source Licenses:
As the name suggests, this license is available to anyone and has no limits. To be
called “open source,” applications must satisfy a variety of criteria. Once an
individual has created an open-source licence, the software must be freely
distributed and redistributed. The owner of an open-source license cannot prohibit
anyone from selling, altering, sharing, or using it for genetic analysis or other

54
purposes. The most basic interpretation is that open source licenses are legally
binding arrangements between a software component’s author and its owner, stating
that the software can be used in commercial implementations under such
circumstances. The license is what makes a piece of code open source. According
to the terms and conditions, each open source license specifies what users are
allowed to do with the program modules, their rights, and what they are not allowed
to do. This may seem to be an easy job, but there are over 200 open source licenses
to deal with, so good luck keeping track of them all. Organizations must select which
licenses are more consistent with their practices to ensure that they remain legal,
and these licenses vary in scope and specifications.
2.5.3 Shareware:
This type of app is also known as “try before you buy.” For a limited time, this app
normally comes with maximum availability. Users must either purchase the app or
delete it from their machines at the end of the trial period. The trial date should be
defined in terms of days. Shareware software is distributed at a minimal (or often no)
rate, but complete legal use typically necessitates payment and registration. On a
trial basis, copies are circulated. You have full freedom to test the app, evaluate if it
suits your needs, and assess whether it is a decent deal. In most cases, order forms
or ads contained in the program or on the delivery disk will instruct you how to
register the program and how much it costs. A written manual, a modified copy of the
software, often with added functionality, and the lawful right to use the program in
their home or company are usually given to authorized users of shareware systems.
The developers of shareware applications receive reimbursement from those who
wish to use the programs on a daily basis because it is not free software. It does,
though, have the advantage over traditional consumer applications in that you can
fully test a program before purchasing it.
Individuals or small businesses typically write shareware, and the content and level
of service vary greatly. However, in some circumstances, shareware kits are
generally more capable than equivalent commercial applications, and some
commercial systems began as shareware.
Companies cannot charge premiums for copies that greatly outweigh their copying
and storage expenses, even though shareware may be freely replicated. Shareware
software writers hold rights to the contents, and you are not allowed to alter or
distribute updated versions.

55
 2.5.4 Demo ware:
Demo ware is only intended for use in demos. The prototype app has no usable
functionality, and its primary purpose is to show the features to future customers.
The owner of a software patent has the freedom to reuse and render as many copies
of his work as he wants. Second, he might place his program on the internet, which
would be called public view. He also has the rights to sell, rent, move, update, and
change his proprietary software. Without the owner’s consent, no one can use a
copyrighted work for personal gain.
However, copyright infringement happens when someone uses a patented work for a
commercial reason or to rob the author of income. Despite the fact that the software
copyright owner has certain proprietary rights, they are not absolute and are subject
to certain restrictions and exceptions in order to protect and preserve the public
interest, including that of software users. Under certain socially desirable cases, the
use of a copyrighted work is tolerated even without the author’s consent.
In India, some acts that do not constitute copyright infringement include fair dealing
with a literary, dramatic, musical, or artistic work for the purpose of private use, like
study, criticism, or review, or making back-up copies purely as temporary protection
against loss, destruction, or damage in order only to utilize the computer program for
the purpose for which it was supplied.

2.6LET’S SUM UP

In this chapter, we have studied the types of online copyright violation along with a
detailed study on its interface with cyberspace. Besides, we understood different
provisions on copyright and types of licensing and their relevance in copyright.

2.7FURTHER READING

Tabrez Ahmad, Cyber Law and E-Commerce, APH Publishing Corp., New
Delhi, 2003
Taubman, A. (2009), ‘International Governance and the Internet’, in: L.
Edwards and Ch. Waelde (eds), Law and the Internet, 3rd ed, Oxford and
Portland, Oregon: Hart Publishing, pp. 3-44

56
 Kolb, Arne (2009), ‘Protection of Computer Software’, in: L. Edwards and Ch.
Waelde (eds), Law and the Internet, 3rd ed, Oxford and Portland, Oregon:
Hart Publishing, pp. 335-360
Kur, Annette, and Dreier Thomas (2013), European Intellectual Property Law,
Cheltenham: Edward Elgar.
Prytherch, R. (Ed.) (2005).Harrod’s Librarian’s Glossary & Reference Book.
England: Ashgate. pp. 173, 543.
Bailey, J. (2013). The Difference between Copyright Infringement and
Plagiarism. Plagiarism Today. Retrieved November 29.

2.8 CHECK YOUR PROGRESS:POSSIBLE ANSWERS

1. What isOpen-Source Licenses?

As the word itself indicates, this license is open for all without any limitations. To
qualify as “open source”, particular software must comply with several conditions.
Once any person has developed such an open source license, then there must be
free distribution, redistribution of such software.
2. What isPlagiarism?
Technological progress has made copying copyright material easy and simple.
Consequently, the control of copyright infringement has very difficult and often
impossible. Books, videos, films, music can be copied without any difficulty, and
thousands of copies can be made from it and distributed.
3. What is the provision for data protection?
The Indian Copyright Act 1957 protects “Databases” as “Literary Works” under
Section 13(1) a. Of the Act, which says, that copyright shall subsist throughout India
in original literary, dramatic, musical, and artistic works.

2.9ACTIVITY
Provide detailed analysis of software licensing. (Word count- 2000-2500)

57
 3
Unit 3: E-COMMERCE & ITS
COPYRIGHT ISSUES
Unit Structure
3.1 Learning Objectives
3.2 Introduction
3.3 Legal recognition to e-commerce practices
3.4 Issues of e-commerce
3.5 General issues
3.6 Protection to e-commerce
3.7 International frameworks
3.8 E-commerce protection in India
3.9 Let’s sum up
3.10 Further reading
3.11 Check your progress: Possible Answers
3.12 Activity

58
3.1 LEARNING OBJECTIVE

In this chapter we will learn-

The E-Commerce regime and how it is treated under cyberspace.
Concepts governing e-commerce including B2B, B2C, C2C etc.
Various treaties and international conventions along with legal provisions.

3.2INTRODUCTION

E-Commerce is a revolutionary method of using digital information systems to

conduct, manage, and execute company transactions. The Internet is available 24
hours a day, seven days a week, and from any place. The internet is the primary
technology that allows all aspects of a commercial transaction (advertising, creation,
acquisition, payment, and service delivery) to be done interactively with several
people, without regard for time or space, in a multimedia (sound, picture, and text)
environment at a low cost. Via the restructuring of conventional business, this allows
changes in processes, resulting in considerable cost savings as well as improved
productivity and efficiency. As a result, e-commerce is a commercial activity involving
the use of hardware, operating applications, or computer networks. The Information
Technology Act of 2000 was passed in order to give legal legitimacy to the idea of
electronic banking, ecommerce, and electronic transactions, as well as to deter
cybercrime and ensure safe practices. However, there are questions about
intellectual PRoperty rights on the internet. 50
Defining E-Commerce
The word "e-commerce" refers to "commerce dependent on bytes." Simply put, e-
commerce is the electronic exchange of goods and services for a fee. E-commerce,
in general, is a business methodology that meets the demands of enterprises,
traders, and customers to cut prices while improving the quality of goods and
services and speeding up service delivery. It's also known as the electronic data
interchange, electronic fund transfer, and other terms for the paperless sharing of
business records. E-commerce encompasses not only data exchanges but also

50
Misra, ParthaSarathi, E-Commerce & Its Copyright Issues (April 3, 2011). Available at
SSRN: https://ssrn.com/abstract=1801782 or http://dx.doi.org/10.2139/ssrn.1801782

59
general business activities such as public relations, advertising, agreements,
contracts, and fund transfers. The Ministerial Declaration on E-commerce of the
World Trade Organization2 (WTO) describes e-commerce as "the processing,
distribution, selling, sales, or delivery of products and services through electronic
means." 51
Telephone, fax, television, electronic payment and money transfer services, EDI
(electronic data interchange), and the internet are the six major E-Commerce
instruments recognised by the WTO. E-Commerce, according to the European
Commission, is more than mere internet browsing. It encompasses a wide range of
activities such as shopping, searching the internet for products and services,
collecting knowledge on things to buy, and completing purchases. It also includes
the distribution and supply of certain goods and services, as well as investigations
into order status. It also entails conducting consumer loyalty surveys, collecting
information about customers, and managing consumer data bases for marketing
campaigns and other similar operations, much as any other long-term commercial
endeavor. E-Commerce creation is similar to a roller-coaster train. It's progressing,
but it's not without its setbacks. It may be considered a part of the maturation
process. The first phase of E-Commerce spawned a modern industry nomenclature
focused on different permutations and variations of Business and Customers, such
as Business-to-Business (B2B), Business-to-Consumer (B2C), Consumer-to-
Business (C2B), and Consumer-to-Consumer (C2C), and Consumer-to-Consumer
(C2C) (C2C).
Business-to-Business (B2B)
It is a business platform that involves two separate or even dependent business
actors, as the name implies. It serves as a business facilitator, negotiator, and
dealmaker for mutually beneficial business units. For eg, Maruti, the vehicle
manufacturer, has over 200 ancillary suppliers who finance its car manufacturing
operations. It seeks their help (primarily in procurement) in keeping all of its pre- and
post-production operations running smoothly.
Business-to-consumer (B2C)
It refers to a business network that links an organization with its customers. It is a
retail version of E-Commerce that includes the sale of products or services through

51
Ahmad, Tabrez&Misra, Partha. (2011). E-Commerce & Its Copyright Issues. SSRN Electronic Journal.
10.2139/ssrn.1801782.

60
online retailers. It is based on the idea of 'convenient shopping.' A customer can
shop at his leisure, from any location and at any time. It's about a new kind of retail
experience, one that involves an electronic version of catalog (mail order)
shopping. 52
Consumer-to-business (C2B)
It's a kind of retail marketing platform in which a company aggressively searches out
or rather chases down consumers. It is a proactive version of e-commerce in the
sense that it is a consumer chaser, selling consumers exclusive offers, packages, or
packets of goods at cheap prices. Furthermore, it negotiates or bids on behalf of
clients, including the best possible offers. Airlines and tour operators use it as a
popular business model these days.
Consumer-to-consumer (C2C)
It reflects a consumer market network in which one consumer functions as a
resource person, selling products to other consumers through an online channel for
a fee. Market to consumer auctions are another name for this. This is an
advancement on conventional sale or auction systems, which include a business-to-
consumer partnership.

3.3LEGAL RECOGNITION TO E-COMMERCE PRACTICES

From the original introduction of UNCITRAL's Model Law on Electronic Trade by the
United Nations General Assembly, e-commerce activities have come a long way in
terms of legal approval. The UNCITRAL model law on electronic communications
was created to promote the use of electronic commerce and to provide nations with
model laws covering the use of alternatives to paper-based correspondence and
data storage. It is built on a practical analogous approach which applies conventional
paper-based standards such as printing, signature, and initial to a paperless
environment. It recognizes electronic archives and digital signatures as legal
documents. 53

52
Jane C. Ginsburg , Copyright Use and Excuse on the Internet, from
papers.ssrn.com/sol3/papers.cfm?abstract_id=239747
53
VikasAsawat, Information Technology (Amendment) Act, 2008: A new vision through a new change, from
papers.ssrn.com/sol3/papers.cfm?abstract_id=1680152

61
On October 17, 2006, India became the world's twelfth country to adopt the
UNCITRAL model legislation on electronic commerce. The model legislation on
electronic commerce served as the basis for the Information Technology Act of 2000.

3.4ISSUES OF E-COMMERCE

Individual copies of a work kept in electronic media without the permission of the
copyright holder constitute a copyright violation, according to a very simple
formulation of how copyright laws in most countries apply to electronic
communications. The main issue with this formulation in terms of ISPs and
intermediaries is that the TCP/IP protocol that underpins the Internet, as well as the
technology that overlay it, depend heavily, if not completely, on the ability to create
copies of information.

3.5GENERAL ISSUES

Contractual Issues
(a) Online contracts are valid: The Indian Contract Act requires such contracts to be
rendered in non-written formats. As a result, while internet contracts can be
legitimate because they are assumed to be in these other ways, there are concerns
about the legality of contracts that may be written down.
(b) Differences between normal and online contracts: It's important to understand the
differences between normal and online contracts, especially when it comes to where
and when the contract is signed. In this regard, the paper contrasts the UNCITRAL
Model Law and the Information Technology Bill, 1998 to the dispatch and receiving
of data messages under Indian law, based on the UNCITRAL Model Law and the
Information Technology Bill, 1998.
(c) Evidence: According to the Indian Evidence Act, records must be supported by
primary evidence, and the authenticity of data messages as primary evidence is
debatable. There's also a question on how to access knowledge contained in
machines. 54

54
Jaime Delgado & Isabel Gallego, Negotiation of copyright in e-commerce of multimedia publishing material,
from elpub.scix.net/data/works/att/200129.content.pdf as accessed on 12th march, 2010.

62
3.6PROTECTION TO E-COMMERCE

As the Internet has increased in importance, copyright security has become

increasingly relevant. For the past two decades, the copyright system has been
continuously threatened by ever-increasing technologies, and the rule of copyright
has emerged as a legal solution to those challenges. Copyright legislation has been
modified to cover Internet products in the same way as it has been adapted to
protect various other new mediums over the years. It safeguards original work as
well as work that has been fixed in a physical form, such as printing, typing, or
recording. Technologies like referencing, inlining, and framing, which are often used
on the internet, pose a significant challenge to a right holder's copyright rights. 55

3.7INTERNATIONAL FRAMEWORKS

The Berne Convention for the Protection of Literary and Artistic Works and the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of
1995 were the foundations of international copyright law until recently. Since 1974, a
separate United Nations body – the World Intellectual Property Organization – has
been in charge of the universal copyright instruments (WIPO). WIPO's mission, as
stated in its founding treaty, is to foster intellectual property rights around the world
through international cooperation and, where applicable, partnership with other
international organizations.
WIPO currently has 180 member states and administers six copyright treaties. Its
aim is to harmonize national intellectual property rights in the long run, with the goal
of creating a single, coherent body of international law.
The Berne Convention
As previously said, the Berne Convention was the first effort to harmonize copyright
law on a global scale, and it was adopted in 1886. The Convention defined a
minimum standard of copyright rights for member countries to adhere to, as well as a
national care policy (under which a member state must give the same protection to
material copyrighted in other member states as it gives to material copyrighted under

55
Copinger and Sknoe James on Copyright, Volume 1 - By Kevin Garnett and Gillian Davis and
GwilymHarbottle South Asian Edition 2008, 15th edition.

63
its own law). The treaty also provided that the International Court of Justice in The
Hague (Hague Court) would have jurisdiction over disputes between member
countries, but it also granted nations the possibility of claiming immunity from the
jurisdiction, as many have done. 56
Parallel to WIPO, the General Agreement on Tariffs and Commerce (GATT) has
discussed copyright concerns. With the rise of the information society, copyright
became profoundly important in influencing international commerce, leading the
1994 Uruguay Round of the GATT to create TRIPS – the Consensus on Trade-
Related Facets of Intellectual Property Rights. The World Trade Organization was
also founded during the same Round (WTO). In enunciating intellectual property
rules, the TRIPS Agreement incorporates parts of the Bern, Rome, and Paris
Conventions. Members shall conform with Articles 1 through 21 of the Bern
Convention (1971) and the Appendix thereto, according to Article 9.1 of the TRIPS
Agreement. Members, on the other hand, would have no privileges or responsibilities
under this Agreement in relation to the rights conferred under Article 6bis of the
Convention or the rights arising from it. As a result, it is clear that the path taken in
the TRIPS Agreement's copyright clauses is to follow the Berne Convention's
copyright protection regime. According to Article 10.1 of the Bern Convention,
"Computer programs, whether in source or object code, shall be protected as literary
works." Compilation of data or other material, whether in machine readable or other
form, that constitute intellectual creations as a result of the collection or arrangement
of their contents shall be protected as such, according to Article 10.2. 57
World Intellectual Property Organization :( WIPO)
The World Intellectual Property Organisation (WIPO) is a United Nations agency
(UN). Before its founding, a number of organizations such as the Assembly of Paris
Union, the Executive Committee, and the International Bureau of Bern were created,
all of which were later consolidated into the 'Bureau InternationauxReunis Pour La
Defense de La ProprieteIntellectuelle,' or 'BIRPI.' Registration, fostering of
intergovernmental collaboration in the management of intellectual property rights,
advanced program operations, and, most recently, dispute resolution facilities are
among WIPO's four types of activities. Member countries felt it was appropriate to

56
Berne Convention, art 9(1): ‘Authors of literary and artistic works……….shall have the exclusive right of
authorizing reproduction of these works, in any manner or form’.
57
Narayanan P., Copyright and Industrial Designs, Eastern Law House, 2010; pp 20 and 30

64
form a convention in 1996 to deal with the defense of copyright as emerging
technologies evolved.
WIPO Copyright Treaty, 1996
On December 20, 1996, the Diplomatic Conference in Geneva accepted it. This
treaty comes under Article 2 of the Bern Convention and is a special negotiation. It
has everything to do with the Internet and new media. The WIPO copyright treaty is
a special arrangement among WIPO member countries that gives authors greater
rights than the Bern Convention. According to Article 4 of the Treaty, "According to
Article 2 of the Bern Convention, computer programs are protected as literary works.
Such safeguards apply to computer systems, regardless of their mode or type of
speech." Furthermore, according to Article 5, "Compilations of data or other material,
in some manner, that are covered as intellectual creations due to the collection or
arrangement of their contents. This defense does not apply to the data or material
itself, and it is in addition to any copyright that might exist in the data or material in
the collection." The WIPO Copyright Treaty protects all types of programming
systems, not just the object code or source code, as was the case in the TRIPS
Deal. As a result, including the slight amendments introduced by the WIPO
Copyright Treaty, it is not incompatible with the TRIPS Agreement.
The Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA) was passed in October 1998 to carry
out the US' treaty obligations under the WCT and WPPT, as well as to bring the
country's copyright legislation into the digital age. The DMCA:
1. makes it illegal to circumvent anti-piracy measures built into copyrighted material,
thus allowing the cracking of copyright protection devices for encryption research,
product interoperability testing, and computer security system testing, and exempting
non-profit libraries, archives, and educational institutions from anti-circumvention
provisions under some circumstances.
2. Makes it unlawful to make, sell, or distribute code cracking machines that are used
to unlawfully copy codes.
3. protects Internet service providers from copyright infringement liability for simply
transmitting information, and limits the liability of non-profit institutions of higher
education for copyright infringement by faculty members or graduate students while
they serve as online service providers and in certain circumstances, thus requiring

65
service providers to exclude material from their systems that appears to constitute
copyright infringement; and
4. Requires webcasters to pay record labels license fees.

3.8E-COMMERCE PROTECTION IN INDIA

In India, the Internet infrastructure is rapidly expanding. There are several questions
about the internet. One of the most pressing problems surrounding the Internet,
though, is the defense of intellectual property, or works of the imagination. Literary
books, images, sound recordings, and other artistic works are protected from being
reproduced without the consent of the copyright holder under Sections 13 and 63 of
the Indian Copyright Act, 1957. It's also uncertain if copyright law would react to
these materials when they surface on the site. The Copyright Act of 1957 makes no
provision for ISP responsibility. Until now, India's stance on responsibility for
copyright-infringing third-party content was unclear. 58
With the advent of IT (Amendment) Act, 2008 there is a significant clarification
regarding the scope of immunities available to intermediaries. Unlike the immunities
under the old IT Act, these immunities are not only available with respect to offences
under the IT Act, 2000 but even for the liabilities arising under any law. Section 79 of
the IT Act exempts ISPs from responsibility for third-party information or data made
accessible by them if the ISP has no idea of the violation or has used any
reasonable efforts to deter it. Subject to the exceptions, an intermediary is not liable
for any third-party records, details, or contact connection made available or hastened
by him, according to the amended Section 79. Section 79 of the Information
Technology Act of 2008 addresses ISP responsibility as follows:

The end of the(1) An intermediary is not liable for any third-party material,

details, or contact connection made available or hasted by him, notwithstanding

anything contained in any law currently in force, but subject to the provisions of sub-
sections (2) and (3).
(2) The provisions of sub-section (1) shall apply if
(a) The intermediary's function is limited to providing access to a communication
system in which third-party information is distributed, temporarily processed, or
hastened; or

58
The Digital Millennium Copyright Act - Overview , http://www.gseis.ucla.edu/iclp/dmca1.htm.

66
(b) The intermediary may not: (i) initiate the transmission, (ii) select the recipient of
the transmission, or (iii) select or change the information contained in the
transmission; and (c) the intermediary exercises due diligence in carrying out his
responsibilities under this Act, as well as any other guidance that the Central
Government may issue in this regard.
The exception to the above are:
1. The intermediary has conspired or aided in the wrongful act's commission; or
2. Upon actual discovery or warning by the proper Government or its entity that any
content, data, or contact connection existing in or linked to a computer resource
managed by the intermediary is being used to perform the unlawful act, the
intermediary fails to delete or disable access to the material on that resource
without tarnishing the proof. In the two scenarios mentioned above, the ISPs will
be held accountable. The additions to Section 79 of the IT Act provide a non-
obstinate provision, which states that "notwithstanding everything inherent in any
statute for the time being in effect," and thereby protects ISPs from liability
resulting from such laws.

At the same time, the amended section 81 contains the following proviso: "Provided
that nothing in this Act shall prevent any individual from exercising any privilege
granted under the Copyright Act, 1957, or the Patents Act, 1970." The aim of this
provision, according to the understanding, is to maintain the priority of the Patent Act
and the Copyright Act over the Information Technology Act. We can correlate the
section 79 and 81 by inferring that other legislation is Copyright Act. Both the section
counter each other but a careful and finer study will justify that the section 79 has
been amended to give more relaxation to ISPs.
Section 79 of the amended act has been framed in accordance with EU Directives
on E- Commerce to determine the extent of responsibility of intermediaries for third
party data or content. The objective of the directive is to promote free flow of
information between the member states. The EU Directive spells out the
intermediaries' responsibilities in great depth, including not only intellectual property
rights and related obligations, but also general material responsibility. The EU
Directive on Electronic Commerce was created with the aim of developing
information society services (ISS), ensuring regulatory certainty and customer trust
through the coordination of national legislation, and clarifying legal principles for the

67
proper functioning of the internal market in order to provide a legal structure that
allows ISS to freely travel between Member States.
Under the E-Commerce Directive, an ISP is exempt from liability when it serves as a
"mere conduit" (Article 12) or provides "temporary caching" (Article 13) for the sole
purpose of making the transmission of content more efficient, is of a mere technical,
automatic and passive nature, and where the ISP has neither knowledge nor control
over the content being transmitted or stored. The terms under which a hosting
company is immune from responsibility, as specified in Article 14(1)(b), serve as the
foundation for the development of "alert and take down" procedures by copyright
owners to ISPs in order to resolve instances of infringement.

3.9LET’S SUM UP

In this chapter, we have learned the laws on copyright under E-commerce and the
international regime governing the same. Besides, along with legal provisions we
have understood the terms like B2B, B2C, and C2C etc.

3.10FURTHER READING
Nimmer on Copyright, Lexis Nexis, Melville B. Winner & David Winner, Indian
Print 2010. Copinger and Sknoe James on Copyright, Volume 1 - By Kevin
Garnett and Gillian Davis and GwilymHarbottle South Asian Edition 2008, 15th
edition.
Legal Dimensions of Cyberspace, S.K. Verma& Raman Mittal, Indian Law
Institute, 2004.
Dr. Wadehra B.L., Law Relating to Intellectual Property, Universal Law
Publishing Co., 4th Edition

3.11 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is Business-to-consumer (B2C)?

It refers to a business network that connects a company with its customers. It is a
retail version of E-Commerce that includes the sale of products or services through
online retailers. It is based on the idea of 'convenient shopping.' A customer can

68
shop at his leisure, from any location and at any time. It's about a new kind of retail
experience, one that involves an electronic version of catalog (mail order) shopping.
2. What is Consumer-to-business (C2B)?
It's a kind of retail marketing platform in which a company aggressively searches out
or rather chases down consumers. It is a proactive version of e-commerce in the
sense that it is a consumer chaser, selling consumers exclusive offers, packages, or
packets of goods at cheap prices. Furthermore, it negotiates or bids on behalf of
clients, delivering the best possible offers. Airlines and tour operators use it as a
popular business model these days.

3.12 ACTIVITY

Elaborate on international conventions and treaties governing E-Commerce. (Word

count- 2000 to 2500).

69
Unit 4: COPYRIGHT
PROTECTION IN CYBERSPACE-
A COMPARATIVE STUDY OF
4
USA AND INDIA
Unit Structure
4.1 Learning Objectives
4.2 Introduction
4.3 Laws- a comparison
4.4 USA
4.5 India
4.6 Compliance with International regimes
4.7 Liability on infringement
4.8 Let’s sum up
4.9 Further reading
4.10 Check your progress: Possible Answers
4.11 Activity

70
4.1 LEARNING OBJECTIVE

In this chapter we will learn-

The comparative analysis of USA and India in light of its copyright provisions.
The compliance regime in USA and India with respect to copyright
infringement.
Various legal provisions governing copyright in national and international
forums.

4.2INTRODUCTION

It has aided globalization significantly by promoting the quick sharing of information

from one location to another, resulting in increased communications and awareness
dissemination. 59 Every year, about 8,50,000 objects, including books, magazines,
electronic, and multimedia materials, are published worldwide, according to
UNESCO. However, it has also been seen to be dangerous in certain instances.
Copyright laws are designed to strike a balance between the author's private rights
and the public's overall interests. However, with the emergence of the internet and
cyberspace, it is impossible to draw a straight distinction between the public's needs
and the author's interests. It has greatly helped in globalization by facilitating easy
exchange of information from one place to another thus leading to increase in
communications and spread of knowledge. According to UNESCO, approximately
8,50,000 items which include books, journals, electronic and multimedia resources
are published worldwide every year. 60 But, it has also proved to be harmful in some
ways. Copyright laws are aimed at maintaining a balance between the individual
interests of the author and the interests of the public at large. 61However, with the
coming of the internet and the advent of cyberspace, it is difficult to draw a clear line
between the interests of the public and the interests of the author. It has led to the
commission of certain crimes in a much hassle free manner than executing them in

59
R MurugaPerumal, Copyright Infringements in Cyberspace: The Need to Nurture International Legal
Principles, 14(3) INTERNATIONAL JOURNAL OFTHE COMPUTER, THE INTERNET AND
MANAGEMENT 8,8 (2006)
60
Frank Pasquale, Toward On Ecology of Intellectual Property: Lessons from Environmental Economics for
Valuing Copyright Commons, 8 YALE J.L. & TECH 78, 110 (2006)
61
Muragendra B.T., Copyright and Trademark in Cyberspace, 3 (6) International Journal of Scientific and
Engineering Research 1, 2 (2012)

71
person. Infringement of copyright is one of such wrongful acts. Earlier, the infringer
had to do all acts physically so it was easy to locate him, but through a large number
of networks in cyberspace, it is not even possible to track the offender or stop such
infringement every time it occurs. Therefore, digitalization has a profound effect on
creation, reproduction and dissemination of works protected by copyright. Now
almost anything or everything can be transmitted on cyberspace. Movies like Star
Wars and Spiderman could be downloaded easily before they hit the screens, mainly
due to the advent of digital technology. In the light of these situations, almost every
country has felt the need for developing and enacting effective laws to prevent loss
to the authors due to mass undetectable copyright infringement. The laws have been
discussed below in detail.
In the world of digitalization, the problem of copyright infringement in cyberspace has
become a big challenge. There are several reasons for this; one such reason is in
my opinion, the level of enforcement of copyright laws in the countries. So, to confirm
this viewpoint, a detailed study will be made of the legislations that have been
enacted in the two countries selected for study- USA and India, one with a strongly
developed copyright law and one with a comparatively developing copyright law.

4.3LAWS- A COMPARISON

The comparison of the laws of the two countries USA and India has been made on
various aspects of the law as discussed below:
Jurisdictional Issues The question of jurisdiction of courts in case of copyright
infringement in cyberspace is a matter of global debate due to the unique nature of
dissemination of information through the internet.

4.4 USA

It is relevant to mention that USA is the first country where computer software were
developed, so naturally the country had to bear the burden of incidents of intellectual
property infringement in cyberspace before any other country. As these incidents
were on an increase, the US courts had to exercise their powers to give justice to the
victims of copyright infringement. Since 1990s the Courts have developed two tests
for determining their jurisdiction to entertain complaints of intellectual property

72
infringement. The first test referred to as the Zippo test was developed in the case of
Zippo Manufacturing Co v Zippo Dot Com Inc 62.
The test based jurisdiction of the US courts on the extent of a website
in the given jurisdiction. In the opinion of the Court, “a passive website is insufficient
to establish personal jurisdiction, but an interactive site through which a defendant
conducts business with forum residents, is sufficient to establish personal
jurisdiction.” But a major drawback of this test was that it did not provide any
guideline as to what amounted to the right level of interactivity in order to constitute
jurisdiction, whether a continuous day to day record is required or it is sufficient to
show a fairly regular interaction. The second test also referred to as the “effects test
was given in the case of Calder v Jones. 63
The test based jurisdiction on three criteria: (1) an intentional action (2) expressly
aimed at the forum state (3) knowledge that the brunt of the injury would be felt in the
forum state. Thus, it indicated that if the person being affected by the copyright
infringement or the spread of the copyrighted work is widespread in the forum state,
it has full jurisdiction over the matter. Although the second test is not much in use
today, the first test does have a great significance in determining jurisdiction in
recent infringements. A recent case of United States v Kim Dot Com 64 that decided
the jurisdiction in case of a matter under the DMCA 1998, gave quite a similar view.
The Court was of the opinion that „corporations that are foreign in their registration
and address but conduct a substantial amount of business in the United States will
not be able to dodge the jurisdiction based on formalities”. The courts have however
become a bit more flexible in this approach and do not always look for a high amount
of business. This is reflected in the case of Inc v Yandex NV 65 where a Dutch search
engine was held to be subjected to the California Court even though only 6 per cent
of the infringements occurred in the United States.

4.5 INDIA

The Indian law is not very clear in this regard. Section 62(2) of the Indian Copyright
Act, 1957 confers an additional jurisdiction to the courts to take cognizance of

62
Justice S Muralidhar, Jurisdictional Issues in Cyberspace, 6 THE INDIAN JOURNAL OF LAW AND
TECHNOLOGY 1,1 (2010)
63
952 F. Supp. 1119 (W.D. Pa. 1997) (US District Court)
64
465 U.S. 783 (1984) (US Supreme Court)
65
2012 WL 517537 (E.D. Va. Feb. 16, 2012) (US District Court for the Eastern District of Virginia)

73
matters of infringement of copyright over the internet by providing for an extra place
of suing other than the grounds provided under Section 20 of the CPC, 1908. 66Thus,
such infringements can be brought within the purview of District Courts under
Section 62. This again raises a very crucial question as to the constitutionality of
Section 62(2) of the Act as it would mean extraterritorial jurisdiction of the courts
which is clearly in conflict with Article 1(2) 67 of the Constitution of India, 1950.
Although the IT Act provides for all cyber laws, it does not particularly the problems
of intellectual property rights. So, provisions do not indicate any solution. However,
the Indian judiciary has read in jurisdiction of the Indian courts in these provisions. In
the case of Super Cassettes Industries Ltd v Myspace Inc&Anr., 68 the use of the
words „any place
been interpreted to include common public place or library or any other kind of place.
It subsumes within it physical place or place at the internet or web space.
A landmark case is that of Banyan Tree Holdings Ltd v M Murali Krishna Reddy and
Anr. 69in which the issue of extended jurisdiction was dealt with. The plaintiff here
was a resident of Singapore and the defendant was from Hyderabad. The rationale
of Casio India Ltd v Ashita Tele Systems Pvt. Ltd. 70 was relied upon to conclude that
due to the ubiquity, universality and utility of the features of the Internet and the
Worldwide Web, any matter associated with it possesses global jurisdiction. The
Court also relied on the holding in Zippo Manufacturing Co v Zippo Dot Com 71and
some other US decisions and concluded that the Court did have the jurisdiction to
deal with the matter.

4.6 COMPLIANCE WITH INTERNATIONAL REGIMES

For addressing the problems of intellectual property infringement over the internet,
various international regimes were developed. The World Intellectual Property
Organization Internet Treaty was one of its kinds. Both USA and India are
signatories to WIPO. It is pertinent to check their incorporation of the treaty into their
domestic laws.

66
2013 WL 1899851 (N.D. Cal. May 7, 2013) (US District Court)
67
Section 62, Copyright Act, 1957
68
(2011) 48 PTC 49 (Delhi High Court)
69
280 F.3d 934 (9th Cir. 2002)(US District Court for the District of California)
70
Abhai Pandey, Inside Views, Development in Indian IP Law: The Copyright (Amendment) Act, 2012,
Intellectual Property Watch (January 1, 2013), available at http://www.ip-watch.org/2013/01/22/development-
inindian-ip-law-the-copyright-amendment-act-2012/
71
Berman, CAREER GUIDE TO INDUSTRIES, 2008-09 143 (2008)

74
USA
In USA the Digital Millennium Copyright Act was enacted in 1998 to bring the
Copyright Act in consonance with the provisions of WIPO treaties. Section 1201 of
the US Copyright Act, 1976 added by Section 103 of DMCA protection against
circumvention of technical measures used by copyright owners to protect their
works. Two types of technological measures have been recognized: measures that
prevent unauthorized access to a copyrighted work and measures that prevent
unauthorized copying of the copyrighted work. The circumvention of the first was
prevented but not the second, in order to promote fair use These changes were
made in consonance with Article 11 of WCT and Article 18 of WPPT. In this regard,
the US Court has held in the case of Kelly v Arriba Soft Corp 72 that providing
thumbnail versions of images and automatic indexing of webpages containing
images will amount to fair use. Similarly, Section 1202 was added to protect the
integrity of copyright management information in consonance with Article 19 of
WPPT.
INDIA
In 2012 the Copyright Act of 1957 was amended to bring it in consonance with the
World Intellectual Property Organization Internet Treaties- the WCT and WPPT.
Along with providing for technical measures to protect copyrighted works in
cyberspace, it also provides for special fair use provisions for works in the internet.
The word “hire” was included in Section 14 of the Indian Copyright Act, 1957 in
compliance with Article 7 of WCT and Article 9 of the WPPT, which provide for
“commercial rental” rights for computer programmes and cinematograph films. In
Section 14(d) and (e) the term “hire” was replaced by the term „commercial rental
order to narrow down the scope of hire to only commercial rentals and not non-
commercial ones. The definition of the term commercial rental was also introduced
under Section 2(fa) of the amended Act. Fair use provisions are now extended to
digital works.

4.7LIABILITY ON INFRINGEMENT
In case of copyright infringement over the internet, multiple parties are involved in
the act. The parties involved in copyright infringement over the internet are: copyright

72
464 U.S. 417, 435 (1984)(United States Court of Appeals)

75
owners, internet service providers and the individual involved in uploading the
copyrighted material in the server of the Service Provider. ISPs (internet service
providers) are organizations that provide their clients or customers with access to the
internet. It generally appears that the person uploading the document should be
responsible for infringement, but there is a tendency to rather hold the service
provider liable for infringement. There are mainly two reasons for this: 1) due to the
wider reach of cyberspace it is difficult to locate an individual who actually uploads
the copyrighted material, whereas the service provider is an organization having its
place of business in a definite place, 2) an individual will not be able to pay the
amount on infringement but an organization can pay for making good the losses on
infringement. This trend is also visible in the laws of two countries for fixing liability:
USA
In US the liability for copyright infringement in cyberspace has been established with
the help of case laws. One of the initial cases is that of Sony Corp v Universal
Studios where the Internet Service Providers were held liable by virtue of vicarious
liability and contributory infringement. Later, in the case of Religious Technology
Center v. Netcom Online Communication Services, Inc. the Federal District Court of
Northern California was posed with a similar question of liability of the ISP for a
material posted by the clients. The court adjudged on three main issues: firstly,
Netcom could not be directly held liable for the material posted directly by its clients.
In its opinion, the ISP is the one, which only provided the tool, and the original
infringing work was done by the client who uploaded it.
This was a clear dissent from the previous judgements in this regard. Secondly, the
link between the infringing activity and Netcom’s finances were not sufficient to hold
Netcom vicariously liable. Thirdly, though Netcom could not be held liable for direct
infringement or even vicariously, it could be definitely made liable for contributory
infringement. This however had to be proved, which was left open for trial, and the
case was subsequently settled out of the court.
INDIA
The stand in India is completely opposite to that of USA. There is no definite law or
decision which provides guidelines for such kinds of infringement. A small provision
can be said to have been made in the Information Technology Act, 2000 by virtue of
Section 79 of the Act, which exempts the internet service provider from liability in
case of third party violations, if due diligence is proved. However, confusion arises as

76
to the specific position of copyright infringers within the text of this provision. The
words „under this Act, rules or regulations made thereunder indicate only a bar under
this Act and not that of the Copyright Act. In such a situation, it is important to look at
various case laws in this regard in India. The judicial response suggests that the
ISPs have been held liable for acts of contributory infringement, not following the
provisions of the IT Act, 2000. In one case of Super Cassettes Ltd v Yahoo Inc and
Anr, the Delhi High Court had issued a notice to the ISP Yahoo Web Services (India)
Pvt. Ltd for infringing copyright of the plaintiff by streaming one of its videos in the
portal video.yahoo.com. The Delhi High Court has issued similar notice to other ISPs
like Google, Youtube. Some amendments have also been brought about in the Act in
Section 52(1) (c) for restricting liabilities. However, there is still no express provision.

4.8LET’S SUM UP

In this chapter, we have learned the laws of two countries-USA and India in the light
of copyright protection of their works in cyberspace. The main issues revolved
around the jurisdiction of domestic courts, compliance with WIPRO, liability on
infringement and remedies for the copyright owner. We have also learned various
laws and the decisions of the courts.

4.9FURTHER READING

Thomas H Davenport, INFORMATION ECOLOGY: MASTERING THE

INFORMATION AND KNOWLEDGE ENVIRONMENT, 3 (1997)
Tatiani G Rapatzikou, GOTHIC MOTIFS IN THE FICTION OF WILLIAM
GIBSON, 100 (Rodopi,2004)
[3] ChitrarekhaKuffalikar, Redefining IPR in the New Digital Environment: Some
Concepts For College Libraries in INTELLECTUAL PROPERTY RIGHTS AND
COPYRIGHT, 50, 51 (SP Satarkar ed., 2003)
JJ Hua, TOWARD A MORE BALANCED APPROACH: RETHINKING AND
READJUSTING COPYRIGHT SYSTEMS IN THE DIGITAL NETWORK ERA,
39 (2014)

77
 Super Cassettes Ltd. v MrPunitGoenka and Anr. 2009 (41) PTC 1(Delhi High
Court)
Frank Pasquale, Toward On Ecology of Intellectual Property: Lessons from
Environmental Economics for Valuing Copyright Commons, 8 YALE J.L. &
TECH 78, 110 (2006)

4.10CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What are the reasons to hold the service provider liable for infringement?
There are mainly two reasons for holding service provider liable.
1) due to the wider reach of cyberspace it is difficult to locate an individual who
actually uploads the copyrighted material, whereas the service provider is an
organization having its place of business in a definite place,
2) an individual will not be able to pay the amount on infringement but an
organization can pay for making good the losses on infringement.
2. State the criteria to determine the jurisdiction.
There are three criteria: (1) an intentional action (2) expressly aimed at the forum
state (3) knowledge that the brunt of the injury would be felt in the forum state. Thus,
it indicated that if the person being affected by the copyright infringement or the
spread of the copyrighted work is widespread in the forum state, it has full jurisdiction
over the matter.

4.11 ACTIVITY

Elaborate on the jurisdiction of domestic courts, compliance with WIPRO, liability on

infringement and remedies for the copyright owner (Word count- 2000 to 2500)

78
 Block-3
TRADEMARK AND CYBER LAW

79
Unit 1: TRADEMARK 1
TRAFFICKING IN CYBERSPACE
Unit Structure
1.1 Learning Objectives
1.2 Introduction
1.3 Cyber spacing
1.4 Fundamental of Trademark
1.5 Rights under Trademark
1.6 Trademark in cyberspace
1.7 Linking and framing
1.8 Let’s sum up
1.9 Further reading
1.10 Check your progress: Possible Answers
1.11 Activity

80
1.1 LEARNING OBJECTIVE

In this chapter we will learn-

The traditional notion of trademark law and its shift towards cyberspace.
Relevant case laws in relation to determination of the jurisdiction of the case.
Various remedies in case of trademark violation on cyberspace.

1.2INTRODUCTION

Unimaginable growth of the Cyberspace raise the various thought in trademark

related issues arises in it. Many of the issues are solved by the traditional notion of
trademark law, whereas the other present thornier questions requiring greater
sensitivity for the effecting marketing in internet. The domain name dispute is the
cyberspace trademark issue that continues to attract the most coverage. Is a domain
the same as a trademark? When does a domain's use infringe on a trademark's
rights? What will a corporation do if someone else registers its name or trademark as
a domain name? Beyond domains, there are a slew of trademark problems that are
sure to outweigh domain conflicts in the end. Along with the internet, questions about
what constitutes patent use and misuse are exploding. Companies must be cautious
in minimizing trademark dilution and think carefully before linking to other sites or
allowing others to link to the company's site using company trademarks, in addition
to standard trademark improvement and policing issues that take on new forms on
the Internet. Attempting to enforce trademark rights in cyberspace is a difficult but
fascinating job. 73

1.3CYBERSPACING

Cyberspace is a futuristic computing environment and an interactive medium that is

used to link computers all over the world. Cyberspace is a global computer network
that uses the TCP/IP protocol to allow online networking and data transfer. The term
cyberspace was initially introduced by William Gibson in his 1984 books,
“Neuromancer”. Later on it was Gibson who criticizes the term in late year, calling it

73
Meena Amar, lectures on Cyber Laws, 1st ed. (Hyderabad: Asia Law House, 2011), pp.71 to 72.

81
evocative and essentially meaningless. Cyberspace allows users to share
information, conduct business and many other activities. It mostly gained its interest
not by its technical execution and implementation but by the social interaction. The
Cyberspace does not have any physical foundation that we used in the real world.
But that virtual effect in cyberspace takes place in the real world have a real effect.
Cyberspace, according to author Bruce Sterling, is "the location where a telephone
call seems to take place." 74 It's not in your phone; it's in the plastic unit on your desk.
Not in the other person's house, but in a different city – the space between the
phones. The indefinite location where the two of you, as human beings, meet and
communicate.” The growth in the internet brought the problem in the cyberspace
because of its ease flow of information and communication led the misuse of the
information in the internet. In fact, the investigator has revealed that the incident of
9/11in the U.S.A and the 26/11 in Mumbai are result of the internet where the
carnage communicates to each other through the internet.

1.4FUNDAMENTALS OF TRADEMARK LAW

Trademark law Trademark is the word, symbols, or phrase of the particular

manufacturer or seller’s product distinguish itself from other product. For example
the TM of Nike is different from other brand of the shoes such that in internet is done
by Nike.com and under some circumstances the packaging and procedure also
include in the trademark. Trademark is very much essential in industry and
commercial business to of identify their product. This trademark secures the right of
the owner of the manufacturer and avoids the infringement of the product so that no
person can allow using that mark with approval of the owner. The trademark is the
way by which right of both the consumer and manufacturer owner. The essential
function of the trademark is to identify the origin of the consumer source and the
product source. It is properly called as indicate source or serves for example,
“Pepsi”, “coke cola”, “McDonalds” etc. Trademark is an essay way to the consumer
to identify the product source. 75 Trademark just directly looks in the symbols of the

74
R.K. Chaubey, Cyber Crime and Cyber Law, 1st ed. (kolkatta: Kamal Law House, 2008), pp712 to 714
75
See Joe Mullich, Coffee Break: Some Play Net Domain Game Hoping for Big Gain, BUSINESS FIRST, Aug. 25,
1997, at 18. The results of a 'whois' search on conducted on January 28, 1999, indicate that the domain is still
registered to Khoshnood but evidently does not have a server location.

82
product from which a consumer can easily know the quality of the product. For
example if the person has to buy cold drink, he simply sees the symbols of Pepsi
and borrows it. Such that in internet the consumer directly look into the domain name
example when a person have to buy cell phone he will look into the application of flip
kart which assured the safe delivery of the product.

1.5RIGHT IN TRADEMARK

Right of TM owner – the trademark owner has three essential rights: 1. Exclusively
right to use that product. 2. To obtain relief from the infringement of the product. 3.
Right to assign the TM in consideration to use. The right in the trademark are confer
by two ways that is by registering the trademark in registration office i.e. patent and
registration office or by being the first one to use that trademark in commerce. 76 The
use of marks means the actual sale of the product to public in that area where it gain
the reputation for example if owner sale pizza in his local area than he gain the
reputation over there and can protect that marks from the late comers who use that
marks. But if the mark is used in other geographical area then the mark could not
called as infringes. The other way to use mark is by registering that mark in the
registration office. It is the bonafide intention to use that mark. After the marks have
been registered the right will be confers to sue the party in infringement or could
claim the remedy from that person. This right is limited if the mark is been used in
geographical area then the registration owner of the trademark can use that mark
everywhere except in that area where it has been used earlier.

1.6TRADEMARK IN CYBERSPACE

Traditionally, trademark law was used to shield merchants who had registered
trademarks by granting them exclusive rights to do business under the logo and
excluding third parties from doing so. However, with the advent of the internet and
the paradigm change from the conventional trading method to the online forum, the

76
McCarthy J Thomas, Dilution of a trademark: European and United States law compared in Intellectual
Property in the New Millennium, 165-166

83
traditional trading process has become obsolete. Many new problems have arisen in
the area of trademark rights.
One of the most prominent places where trademark disputes in cyberspace occur is
the domain name. A domain name is essentially the name given to a website; it is
similar to an address that people use to access the website. The domain name is
very significant in device recognition, and is achieved with the help of an IP address,
which is a series of numbers and letters. However, due to the IP address's
complicated numeric coding, simpler alternatives that are easily remembered have
been created. A domain name is an option that may be a mixture of words, symbols,
and numbers. For instance, a domain name may be www.lawyerswork.com. 77
It is vital to register a domain name in order to create a structured marketable
position on the internet. As a result, there is no trademark examination of domain
names because it will be too much hassle for the registrar. As a result, there are four
situations in which a controversy over a domain name versus a trademark occurs.
The first instance is known as cyber-squatting. It applies to the act of registering a
domain name for the purpose of conducting trade and commerce. The domain name
is the company's trading name, but it is not registered with the company. A third
party registers a domain name with the intention of transferring it to the original
owner for a fee. The applicant cannot file his trademark as a domain name until the
other party has the domain name, and therefore his right to register is infringed. It
has been noted that a domain name serves as a company's identifier. It has the
same purpose as a company's trademark. A domain name is more than just a way to
get to a certain website.
Furthermore, if an entity registers a domain name that is equivalent or close to a
trademark of a corporation for which he has no business relationship, an injunction
can be issued against the person. There was no legislation pertaining to domain
name rights. The United States was the first nation to pass laws on the subject. The
Cybersquatting Piracy Act of 1999 was the name of the law.

77
Further complications arise with regard to user names and subdomains. Although NSI may assign second
level domains, domain holders are free to create any number of subdomains and user names. Thus, the
journalist who registered , in part to call attention to the reality that only the affluent have access to the
Internet, used the moniker ‘Ronald’ ([email protected]). See Joshua Quittner, Billions Registered, Wired
Magazine, October 1994 (visited April 22, 1999) . Likewise, there was nothing, other than trademark law, to
prevent the registrant of the domain from using a subdomain such as ‘microsoft’ () even accompanied by the
user name ‘gates’ ([email protected]).

84
The cyber parasite is the second case, in which benefits and profits are gained
through the use of the real domain name. The approach entails using a generic or
misspelled domain name that is similar to a well-known trademark. These strategies
are used to trick customers to pawn off goods as their own. In the case of Rediff
Communication Ltd. v. Cybertooth and Others, the defendant had registered a
domain name that was confusingly similar to the plaintiff's and was operating a
similar company. The defendant intended to carry out his trade and business under
the plaintiff's trademark or trade name, resulting in a violation of the plaintiff's
privilege, according to the court.
The Cyber twin is the third scenario. This condition happens where all parties to a
lawsuit have a legal right to a certain domain name.
Reverse cyber-squatting is the fourth case involving a domain name. This is the
antidote to cyber-squatting. It entails trademark owners attempting to take control of
a domain name by using tactics such as bogus cybersquatting claims against the
domain name's legitimate owner. To avert legal repercussions, the domain name
owner is required to pass the domain name to the trademark owner.
Apart from the above obstacles, there are also several other cyberspace challenges
posed to a company's trademark. In the cyber space, another field where a
trademark dispute can occur is hypertext connections. It basically refers to moving a
user from one page of a website to another. There are hyperlinks that are inserted
between web pages. For eg, we can see a hyperlink for ‘Gucci' on a web page, but
when we click the link, we are taken to another web page that may sell similar items
but is not associated with the brand Gucci. Trademarks are infringed as a result of
these hyperlinks. Furthermore, it is simple to monitor the hyperlinks that exist in
cyberspace. As a result, a functional solution in this area has yet to be formulated.
In certain cases, the use of keywords may result in trademark infringement in
cyberspace. Often times, web sites use well-known trademarks as keywords in order
for their website to appear at the top of the search results. The use of a trademark
can mislead an unsuspecting user, resulting in infringement.
The internet was initially created as a tool for communication only for government
and industrial purpose but now it becomes the global economic purpose. The easy
flow of information and ease of communication increase the ability to access the
information which creates the opportunity to misuse and criminal activity. It had
tremendous impact in intellectual property. Domain name dispute is the most active

85
part that involves the accusation of trademark infringement usually by the cyber
squatter. Recently there was no law regarding the protection of the domain name but
after the legislation made by the United State, which is the first country to make
cybersquatting infringement act 1999. In an increasingly global market the brand
become important for competitive advantage in the internet. ”Brands rely on their
symbolic power to draw attention to themselves and build an acknowledged capacity
for value creation”. Brand can secure its rights by registering the trademark as a
domain name. The current internet technology does not limit problem of
cybersquatting and other confusion regarding the TM as a domain name.
With the adoption of the Domain Name Dispute Resolution Policy (UDRP) on August
26, 1999, the Internet Corporation for Assigned Names and Numbers (ICANN)
created a new regulation. The Internet Organization for Assigned Names and
Numbers (ICANN) is in charge of maintaining and organizing the domain name
scheme to ensure that each address is unique, including IP addresses and domain
names. Via its Digital Agenda, which combines the internet, digital media, and the
intellectual property regime, the World Intellectual Property Organisation (WIPO)
guarantees that the rights of authors and owners of intellectual property are secured
around the world.
Cyberspace is functioning well in order to effective commercial marketing and
business but with this the right of consumer and owner of product must be protected.
The development of law in the technical field is limited but with little courage the law
and technology together will protect the trademark community in cyberspace. The
most common aspect of domain name issue issues is that of cyber squatting. Under
the U.S Anti-Cyber squatting Consumer Protection Act 1999, cyber squatting is the
use of trademark in order to take advantage by that trademark and by registering
domain name of the famous company to take undue benefit from it. One of the
corollary of the cyber squatting is typo squatting where the users are made to make
a typographical errors when entering in the domain name. For example:
1. BSNL.co.in into BSNL.com
2. Sony.com into soni.com
3. Facebook.com into facebok.com
Yahoo Inc. vs. Akash Arora 19 feburary1999The appellant, who is the registered
owner of the domain name "yahoo.com," was successful in securing a temporary
injunction prohibiting the defendants and their associates from doing business on the

86
Internet or elsewhere under the domain name "yahooindia.com" or any other
trademark/domain name that is confusingly identical to the plaintiff's trademark.
Domain Active Property Ltd Sbicards.com vs. Sbicards.com was requested by the
World Intellectual Property Organization (WIPO) to be sold to an Indian company
from an Australian firm that had stolen the domain name in the hopes of selling it for
a large amount to a State Bank of India affiliate later. SBI Card's claim that the
Australian firm was in the business of buying and selling domain names from its
website was acknowledged by the panel. 78

1.7LINKING AND FRAMING

Hyperlink is the transportation of the users to another location. Linking create

problem with feature like “deep linking” and in the framing helps the site manager to
create frames on the page itself and open web page on a single page. It makes
vulnerable to intellectual property right violations. Meta tagging is another major
problem for the trademark holders. Meta tagging containing the words, keywords and
content of the pages due to its meshing of the technology makes its legal issue. It
signify the HTML, which forms the basis of the WWW.79
Remedies International level
Provision of the Anti cyber squatting consumer protection act (1999).
International arbitration system created by ICANN.
National level
National internet exchange of India
WIPOs and arbitration system
Suit in ICANN

Jurisdiction and enforcement

Anti cyber squatting Consumer Protection Act (ACPA) feature is that it enables in
rem jurisdiction in domain name dispute which means that the domain name owner
does not have to sue personally but can takena action against domain name itself.
But it is not easy to sue the cyber squatter as the location of the infringer could not

78
Mariela Maidana-Eletti, Market Access and Trademark Protection in the WTO Regime: The Case of
Certification Marks, RECHT UND GESUNDHEIT: JUNGE RECHTSWISSENSCHAFT LUZERN 69, 82 (2013), available
at http://ssrn.com/abstract=2602000.
79
NEIL WILKOF & DANIEL BURKITT, TRADE MARK LICENSING, 176–78 (Sweet & Maxwell 2d ed. 2005).

87
be located then the person cannot be sue as in context of the U.S. law. To take
advantages of the rem provision the trademark owner must have to satisfy that the
location of the infringer could not be found. The plaintiff in rem provision cannot claim
damages but the remedies to cancellation or transfer of the domain name in related
matter the TM owner prefer the (ICANNs) Uniform Dispute Resolution policy. Thus
the above policy cannot provide the damages claim. For such that the plaintiff has to
sue the cyber squatter personally for damages. But such policy is silence in the
dispute which is outside of their jurisdiction and the internet community has to take
more skill technique and effective implementation of law in the cyberspace in order
to protect the TM in internet.
Therefore, it can be concluded that the protection of trademark in the cyberspace is
very complex subject and it is very difficult to stop the infringement of trademark as
the internet is so much vast in nature, involving many grey area which have to be
focused in order to protect the right of TM owner. Our existing law doesn’t have the
effective remedies to plaintiff as the infringer location could not be found and the out
of jurisdiction could not be sued. Such failure could amount to destruction in the
global market. Legal right of an individual poses the challenge for the court to secure
the physical presence of the party who is located outside the jurisdiction of the
respective court and enforce it. All the concerned authorities working towards
betterment of healthcare facilities should work together and take steps to provide:
Remedies to the plaintiff
Implementation of law where it is not possible
26Protection of trademark community in cyberspace

1.8 LET’S SUM UP

In this chapter, we have learned the laws on trademark and its related aspects of
trafficking. We have also covered relevant case laws along with its reference in
Indian context. We have also understood the remedies and steps to mitigate the
trademark trafficking,

1.9FURTHER READING
Jonathan Eisenberg, A Guide to the Anti cyber squatting Consumer Protection
Act, 2000. www.gcwf.com/articles /journal/jil-march00-1.html

88
 Jonathan Eisenberg, A Guide to the Anti cyber squatting Consumer Protection
Act 2000. www.gcwf.com/articles/ journal/jil-march00-1.html
Christopher R Perry. Trademarks as Commodities: The 'Famous' Roadblock to
Applying Trademark Dilution Law in Cyber space Connecticut Law Review,
2000; 32:1127
Jack Goldsmith. Cybercrime and Jurisdictions, 2000.
David Post. Governing Cyberspace This article was to appear in Fall 1997 in
Wayne Law Review. F. Gregory Lastowka, Search Engines, HTML, and
Trademarks: What's the Meta For? 86 Virginia Law Review, 2000, 835.
David Streitfeld. Making Bad Names for Themselves; Firms Preempt Critics
With Nasty Domains The Washington Post, Friday September 8, 2000,
Westlaw 25414864

1.10CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is cyber spacing?

Cyberspace is a futuristic computing environment and an interactive medium that is
used to link computers all over the world. Cyberspace is a global computer network
that uses the TCP/IP protocol to allow online networking and data transfer.
2. What are the rights of trademark owner?
The trademark owner has three essential rights: 1. exclusively right to use that
product. 2. To obtain relief from the infringement of the product. 3. Right to assign
the TM in consideration to use. The right in the trademark are confer by two ways
that is by registering the trademark in registration office i.e. patent and registration
office or by being the first one to use that trademark in commerce.

1.11ACTIVITY

Explain the essentials of trademark in cyber spacing along with detailed account on
the infringement and its remedy. (Word count- 2000 to 2500).

89
Unit 2: INFRINGEMENT OF 2
TRADEMARK IN CYBER SPACE
Unit Structure

2.1 Learning Objectives

2.2 Introduction
2.3 What is domain name
2.4 Trademark and Domain name
2.5 Dispute between Trademark and Domain name
2.6 Forms of infringement of trademark in cyberspace
2.6.1. Cyber Squatting
2.6.2. Reverse domain name hacking
2.6.3. Meta tabs
2.7 Let’s sum up
2.8 Further reading
2.9 Check your progress: Possible Answers
2.10 Activity

90
2.1 LEARNING OBJECTIVE

After going through the chapter, you should be able to understand the-
Relevant aspects attached to trademark in relation to domain name.
Significance of domain name under infringement of trademark
Different types of infringement under trademark.

2.2INTRODUCTION

Issues of Trademark Law and Domain Names in Cyberspace “A logo capable of

being depicted graphically and capable of separating the products or services of one
individual from those of another, and may include the form of goods, their wrapping,
and combinations of colours,” according to the definition of a trademark. 80
A trademark is used to distinguish the origins of a product’s origin. The four purposes
of a trademark are as follows:
i. It defines the substance as well as its source.
ii. It maintains the product’s consistency.
ii. It promotes the commodity.
iv. It provides a mental picture of the commodity in the public’s mind, especially
among consumers or potential consumers of such products. 81 Lee, Skoda, Colgate,
Pepsi, Brooke Bond, Sony, among other trademarks, are examples.

2.3WHAT IS A DOMAIN NAME?

Simply placed, a domain name is a linguistic equivalent to what we refer to as an IP

address. Per machine has a unique identifier, which functions similarly to a phone
number. If you wish to contact a friend, you must first dial the friend’s phone number.
Similarly, if he wants to reach a website, he would type in its IP address. However,
because it’s difficult to recall a long number like 202.162.227.12, a mechanism has
emerged in which a name is translated to the relevant phone number or IP address.

80
Section 2(1)(zb), The Trademark Act, 1999.
81
Dr. B.L. Wadhera, Law relating to Intellectual Property, Universal Law Publishing Company, New Delhi,
2009, at pg. no. 134.

91
As a result, instead of typing 202.162.227.12, one can now simply type
www.tata.com.
What exactly does a domain name entail? These unmemorable lines by the great
poet William Shakespeare were most certainly composed at a period when patents
and domain names were unknown. If Shakespeare had known that
Shakespeare.com was for sale, he would have thought twice about writing those
words. As a result, the importance of domain names should not be overlooked. 82

2.4TRADE MARKS AND DOMAIN NAMES

Cyberspace does not constitute a substantive change to ordinary trademark

infringement. It may be easier to infringe trademarks on the internet, but the actual
infringement is not a qualitatively different phenomenon as such. However, there is
one important exception: the conflict between trade marks and domain names which
is characteristic of the cyberspace. Trade marks are signs capable of being
represented graphically and capable of distinguishing goods or services of one
undertaking from those of other undertakings. Domain names are a different and
more user-friendly expression of internet protocol addresses (unique numbers that
identify each computer linked to the internet) that indicate the location of a given
website. The question of infringement arises if a domain name is confusingly similar
or identical to a trademark. Very often, this is even intended by the registrant of the
domain name. He registers (in bad faith) a domain name that is identical to a known
trademark or trade name of a company and then offers that company the domain
name against payment of a large sum of money – ‘cybersquatting’.
In the UK the principal decision in this regard is BT (and others) v. One in A Million:
where there is clear evidence of systematic registration by the appellants of well-
known trade names for blocking registrations and for extracting money from the
owners of the goodwill in the chosen name, that is a threat to exploit the goodwill by
trading under that name. The registering of a distinctive name makes a
representation to persons who consult the register that the registrant is connected or
associated with the name registered and thus the owner of the goodwill in the name.

82
S. K. Varma& Mittal, Legal Dimensions of Cyberspace, Indian Law Institute, New Delhi, 2003, at pg. no.154.

92
This amounts to passing off and also to trademark infringement. 83 Usually, conflicts
between trademarks and domain names are resolved according to the Uniform
Domain Name Dispute Resolution Policy (UDRP), which operates worldwide. The
registrant submits to this process on registration of his domain name. Where the
registrant’s domain name is identical or confusingly similar to the complainant’s
trademark, the registrant has no legitimate interests in the domain name, and the
domain name has been registered and is being used in bad faith, UDRP will cancel,
transfer or change the domain name. 84Although the law on infringement is clear, it is
also obvious that in fact, cybersquatting opens up a large field of potential cyberwar
activities.

2.5DISPUTE BETWEEN TRADEMARK AND DOMAIN

NAMES

The Trademark Act, 1999 has been enacted with an object to amend and
consolidate the law relating to trademarks for goods and services and for the
prevention of the use of fraudulent marks. However, trademark owners desirous of
using their marks as domain names have found that such domain names have been
recognized by unauthorized parties, often as a deliberate attempt to violate the rights
of the original trademark owner. Actually, domain names are registered on a ‘first
come, first serve basis’ which leads many a time to what are commonly referred to
as ‘abusive registrations’, i.e. registration by a person of a domain name containing a
trademark, in which such person/entity has no legitimate right or interest.

2.6FORMS OF INFRINGEMENT OF TRADEMARK

THROUGH CYBERSPACE

2.6.1 Cybersquatting:
Various forms of domain name cases are brought to courts around the world. Most of
the more extreme forms of lawsuits has been “Cybersquatting,” which entails the use

83
BT (and others) v. One in A Million and others [1999] 1 WLR 903, at 924-926, CA. Discussion of other cases
on cyberpiracy in the US and the UK, see Younes (2012: 849-850)
84
UDRP policy as approved by ICANN (Internet Corporation for Assigned Names and Numbers),
http://www.icann.org/en/help/dndr/udrp/policy (visited 7 Feb. 2014), paras. 3, 4(a) and (i).

93
of a domain name by someone who has not claimed the name nor any intrinsic claim
to it. Since trademarks and domain names are identical, certain individuals have
taken advantage of this by registering trademarks of others as domain names and
then selling such domain names to trademark owners or third parties for a fee. This
is referred to as “cybersquatting,” which refers to someone sitting in another person’s
house. Cybersquatting is an abusive process in which one party registers a domain
name that contains the name or trademarks of another. This activity demonstrates
the significance of domain names in defining online identities. This method is well-
known in order to either prevent a legal customer from registering their most desired
domain name or to sell the names for a profit on the open market. As a result of this
cybersquatting pattern, courts are looking into the relationship between trademarks
and domain names. To file a cybersquatting suit, the plaintiff must show deception, a
violation of legal rights and interests, and a domain name that is identical to the
trademark.
2.6.2 Reverse domain name hijacking:
Reverse cybersquatting is another term for it. It arises when a trademark owner
seeks to secure a domain name by filing bogus cybersquatting charges against the
legitimate owner of the domain name in court. In domain name dispute proceedings,
reverse domain name hijacking, or RDNH, happens when a copyright owner tries to
secure a domain name by wrongly alleging cybersquatting against the domain name
owner.
This differs from domain name hijacking, which is commonly synonymous with
cybercrime and involves the theft of a domain name via unauthorized access to the
domain management account or domain name system (DNS) hijacking, which
involves the modification of a domain’s name servers via similar unauthorized
access.
In other words, RDNH occurs when a trademark owner uses UDRP litigation to force
an actual domain owner to relinquish their domain name rights. This strategy is
against the law, which explicitly indicates that the claimant must certify that they are
not exploiting the procedure to intimidate a domain holder and that they are behaving
in good conscience through fair arguments. Domain name owners are often forced to
sell ownership of their domain names to trademark owners in order to escape court
litigation and expensive costs, particularly where the domain names belong to
smaller businesses or individuals who are unable to afford to contest the lawsuit.

94
Larger companies and well-known affluent people are the most prominent
perpetrators of reverse domain name hijacking.
What can companies do to avoid attempted RDNH?

There is an increased chance of the respondent requesting an RDNH decision

where the trademark is made up of common terms or where the domain name has
no substance. Trademark owners who have ample reasons or who do not act in poor
conscience will avoid an RDNH decision.
Recommendation to trademark owners:
- Make sure the trademark or rights predate the last registrant’s domain name
registration or purchase (in case a domain name has changed hands). It
would be impossible to argue “bad faith” if prior rights cannot be confirmed,
since the UDRP hinges on registration and usage.
- Document how well the trademark was known at the time the contested
domain name was registered; whether the domain name is 20 years old, how
well it is known today is meaningless.
- Claims that are backed up with proof. Present no allegations of your favour or
try to dismiss the respondent without evidence.
- Be truthful with the jury. If you tried to purchase the domain name from the
registrant before filing the UDRP, tell us about it. No tribunal would hold a
complainant responsible for attempting to reclaim a domain name more easily
or cheaply than via the UDRP, although they would remain unimpressed
whether the complainant claims the respondent attempted to market the
domain name to them at an unfair price since the complainant initiated the
conversation.
- Avoid overt efforts to entrap the respondent or deceive the jury, such as
submitting only partial material information, the particulars of which are
revealed when the registrant files their answer.
- Finally, think about who and who you’ll turn to if you have a disagreement.
Without proper analysis of the evidence, a boilerplate solution avoids leaving
the trademark owner vulnerable to not only a loss but also the presumption of
underhanded tactics.

2.6.3 Meta tags:

95
Meta tags, also known as Meta elements, are a type of web page feature. Meta tags
include details such as website titles, keywords, and other pertinent material. Meta
tags were originally used in search engines to describe what a website was for a
while the internet was in its infancy. Meta tags were also used to help position web
sites in the relevant categories. People nowadays use Meta tags to generate fake
page rankings for badly designed web pages. Meta tags are classified into three
categories: title, definition, and keywords.
Meta tags are divided into two categories: context meta tags and keyword meta tags.
The context meta tag, for example, includes a brief summary of the website. The
keyword meta tag, on the other hand, is a word or phrase that best defines the
website’s subject. Other useful meta tags, such as the meta http-equiv tag, the meta
reset tag, the meta copyright tag, and the meta author tag, provide additional
information to web browsers and search engines.
The use of a third-party trademark in one’s meta tags is the key point of controversy
when it comes to meta tags. To draw Internet traffic, website owners, for example,
add third-party trademarks in meta tag info. This will cause traffic to be diverted away
from the trademark owner’s website. Misuse of meta tags can enable the website
owner to benefit from public attention and sales that are misdirected. Intentional
trademark infringement can occur when website operators use third-party
trademarks in meta tags, website copy, and code meta tags.
2.6.4 Loopholes under the IT, Trademark
In India’s new or proposed Information Technology Act, there is no clause to jail
cyber-squatters; at most, the domain can be taken back. Despite the fact that the IT
Act does not provide for civil compensation, To discourage squatters from grabbing
more domains, the IN Registry has taken aggressive measures to reward victims.
The majority of squatters, on the other hand, go by aliases. The National Internet
Exchange of India (NIXI) is a. IN Registry is a self-contained entity that is primarily
responsible for the upkeep of the. IN cc-TLD (country code top-level domain), as well
as maintaining its organizational continuity, reliability, and security. It will carry out
the different aspects of the current strategy outlined by the Indian government’s
Ministry of Communications and Information Technology’s Department of Information
Technology. The Information Technology Act is defective in certain areas, such as
authority, cybercrimes involving IPR, cyber harassment, cyber slander, and so on.

96
Similarly, the Indian Trademark Act, 1999, is vague on questions resulting from
trademark violations on the internet.

2.7LET’S SUM UP

In this chapter, we have analyzed the concept of cyberspace in light of trademark

infringement. In addition to that, we understood the various type of trademark
infringement in cyberspace and how domain name id studies in the given context.
Besides, we have also learned about the loopholes under trademark legislation.

2.8FURTHER READING

Dr. Farooq Ahmad, Cyber Law in India, New Era Law Publications, Edition
4th, 2011
Dr. GeorgiosZekos, Issues of Cyberspace and E-Commerce, ICFAI University
Press, 2008
Dr. Gupta & Agarwal, Cyber Laws, Premier Publishing Company, Allahabad,
2010 • G.D. Khosla, Know Your Copyright, Eastern Law House Publication,
Calcutta, 1986
Harish Chander, Cyber Laws and IT Protection, PHI learning Private Ltd.
Publication, New Delhi, 2012 RohasNagpal, Intellectual Property Issues and
Cyberspace, Asian School of Cyber Law Publication,Pune,2008
S. K. Varma& Mittal, Legal Dimensions of Cyberspace, Indian Law Institute,
New Delhi, 2003
V.K. Ahuja, Intellectual Property Rights in India, Lexis Nexis Butterworth’s
Wadhwa, Nagpur, 2009 VakulSharma, Information Technology, Universal
Law Publishing Company, New Delhi, 2013.

2.9 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What is a domain name?

Domain name is the linguistic counterpart of what we call an Internet Protocol
address. Every computer has an address, which is akin to a telephone number.
2. Define Mega Tags.
Meta tag is an element of web pages that are also known as Meta elements. Meta
tags provide information about page descriptions, keywords and other relevant data.

97
3. Explain the reverse domain name hacking.
It is also known as reverse cybersquatting. It happens when a trademark owner tries
to secure a domain name by making false cybersquatting claims against a domain
name’s rightful owner through legal action.

2.10 ACTIVITY

Provide a detailed account of the domain name along with different types of
trademark infringement. (word count 2000-2500)

98
Unit 3: TRADEMARK LAW IN
CYBERSPACE: PROTECTION TO
INTERNET ADDRESS
3

Unit Structure
3.1 Learning Objectives

3.2 Introduction

3.3 Disputes relating to Trademark in Internet Domain Name

3.3.1 Cyber Squatting

3.3.2 Reverse Domain Name Hijacking

3.3.3 Typo-Squatting

3.4 Relation of Dispute Resolving between UDRP and the Courts

3.5 Position in India

3.6 Let’s sum up

3.7 Further reading

3.8 Check your progress: Possible Answers

3.9 Activity

99
3.1 LEARNING OBJECTIVE

In this chapter, we will learn-

How UDRP (Uniform Dispute Resolution Policy) deals with the same situation at an extra-
territorial level.
The legal position under trademark law for protection of trademark in cyberspace
Some suggestions as to how Indian Trademark Laws can make the working of UDRP better
by working on its own laws.

3.2INTRODUCTION

The history of trademark law to the cyberspace can be associated with the creation
of the World Wide Web (www) which certainly created a link of trademark law with
Internet domain name disputes. It has also sparked interest among consumers as a
means of commercializing the Internet medium. Thousands of companies have
created online storefronts to distribute publicity materials, provide customer support,
and sell merchandise and services. As a result of this commercialization aspect,
trademark law and domain name law are being increasingly intertwined.
Consequently, the following dynamic growth of the World Wide Web has issued new
challenges to the intellectual property consultants concerning trademark
infringement.
For trademark owners, internet is a profitable platform, but in certain cases, it turns
out to be problematic in their business growth. These trademark owners often have
to deal with certain domain name disputes inflicted by the third party like
cybersquatting etc but in India, we per say do not have any Domain Name Protection
Law so the cases relating to cybersquatting are decided under Trade Mark Act,
1999. 85
Under the current law, section 29 provides for the protection of registered trademark
and the protection for unregistered trademark has been provided in section 32.
However, the act is silent on the protection for trademarks infringement in the
cyberspace. The bulk of domain name cases appear to include trademarks, as it is
said that the conflict stems from the ownership or use of the domain name infringing

85
See generally Gary W. Hamilton, Trademarks on the Internet: Confusion, Collusion, or Dilution?, 4 TEx.
INTEL. PROP. L.J. 1, 2 (1995); Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging
Law of Cybermarks, I RICHMOND J.L. & TECH. 1, $ 2 (April 10, 1995) .

100
 with some lawfully recognised right, such as a trademark, a common law privilege of
handing off, or some other right.
As trademark laws are territorial in nature but internet in the global domain so the
dispute involving bad faith registrations are typically resolved using the UDRP
(Uniform Domain Name Dispute Resolution Policy) process which is developed by
the ICANN. Under UDRP, WIPO happens to be the leading ICANN accredited
domain name dispute resolution service provider which was established as a tool for
promoting the protection, dissemination, and the use of intellectual property
throughout the world. Since TRIPS agreement provides for only minimum standards
so, there exists similarity up to some extent in the domestic IP laws and except these
principles there are hardly any laws which are uniform, and as a result of which there
exist some advantages and disadvantages of nation over other nations IP laws. 86

3.3DISPUTES RELATING TO TRADEMARK IN INTERNET

DOMAIN NAME

Let’s start with the question why do domain names need a legal protection? On
one hand, domain names provide great economic value to the online business
and on the other, these names are exposed to many ways in which it puts domain
names at risk. The risk particularly includes;

3.3.1 Cyber squatting is described as “the registration of a domain name by someone

who does not have a legal right to the name with the intent to
(i) sell the name,

(ii) (ii) block the trademark holder from having rights to the name, or

(iii) (iii) divert traffic to a name in the hopes of a trademark owner making a
bid for it.”

In the case of ‘Green Products Co. v Independence Corn By-Products Co.' 87

(ICBP), for example, both firms were rivals in the corncob by-product sector. ICBP

86
Robert J. Raskopf, Trademarks and the Internet, in INTELLECTUAL PROPERTY LAW INSTITUTE 1047
(Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series No. G-416, 1995). For a
description of how domain names are created and assigned, see infra Part III.
87
992 F. Supp. 1070

101
 licensed the domain name (greenproducts.com) but has yet to create a website.
The court determined that ICBP's goal was to use its confusing domain name to
attract new users to the site after it was launched, and that it sought to profit
unfairly from the use of Green Product's name. Consumers may not be confused
after visiting the site, but they may only purchase the product from the ICBP's site,
according to the court. The court ruled that it was violation based on these results.

3.3.2Reverse Domain Name Hijacking; as people file confusingly identical domain

names, they point them to gripe pages that contain some propaganda.
3.3.3 Typo-Squatting; done by people who register the domain names
incorporating variations of well-known trademarks terms such as misspellings
(micr0soft.com) or adding of prefixes or suffixes to the existing domain name
(yahooindia.com) and use them for websites to take advantage of unwary
Internetusers.

Yahoo Inc. Corporation v Akash Arora 88 is the first case in which the Indian
Court that discussed the issues revolving services offered through the Internet.
The plaintiff, in this case,
submittedthattheyhadtheregistrationofthedomainnameyahoo.comwithNetworkSolu
tions
Inc.andhadregistrationsofthesameinmorethan69countries.Thedefendantcontended
that he had provided a disclaimer in his website which avoided the confusion,
also, that yahoo is a dictionary word and could not be protected but the High Court
of Delhi held that the marks were similar and disclaimer does not help as people
still would associate it with the original yahoo, administratively or economically.
Furthermore the word yahoo was protected as it was a well known trademark
used by the Plaintiff and wasdistinctive.

The main problem regarding this dispute arises with Cyber Twinswhich occurs
when both
thedomainnameholderandthechallengerhavealegitimateclaimtoadomainnamethent
hey are known as cyber twins. The cases involving cyber twins are the most
difficult to be resolved, because, the law of trademark and unfair competition may
otherwise allow both parties to enjoy concurrent use of both. Both types of

88
1999 Arb. L. R. 620

102
 conflicts may occur on two levels: first, when the same mark is owned and used
by different people for different types of goods or services; and second, when the
same mark is used and used by different people for different types of goods or
services. Second, ‘territoriality' occurs where the same symbol is owned and used
by different people in different countries in relation to the same products or
services.

Both companies have a legal claim to the domain name (dci.com) in Data
Concepts, Inc. v Digital Consulting Inc. 89 and both of them had patent rights for
DCI. Data Concepts, on the other hand, licensed the domain name dci.com in
1993.It would seem that, in the cases where both have claims then the entity first
to register would get it but The Sixth Circuit ruled that there still was possibility of
infringement. Since trademark infringement is both a reality and a legal issue, the
case must proceed through a full trial before an infringement decision can be
made. Owing to a lack of documentation and the fact that Digital was unaware of
Data's previous life, the lawsuit was dropped when Data did not show that dci.com
was misleading people between the two tags.

3.4RELATION OF DISPUTE RESOLVING BETWEEN UDRP

AND THE COURTS

The UDRP applies to second-level domain name registrations in the following 14

generic top-level domains (gTLDs):

.aero,.asia,.biz,.cat,.com,.coop,.info,.jobs,.mobi,.museum,.name,.net,.org,.pro,.tel,
and fly. However, some of the above-mentioned gTLDs are only covered by rules
and procedures rather than the UDRP. For example, in the.name room, there are
two dispute resolution policies that may be applicable to second-level domain name
registrations: the UDRP and the Eligibility Requirements Dispute Resolution Policy
(ERDRP), both of which are seldom used by Indian registrants. A claimant must
define the following three elements to succeed under the UDRP:
(i) “Because the domain name is identical or confusingly similar to a

89
150 F.3d 620

103
 complainant's trademark or service mark;

(ii) That the registrant has no ownership or legal privileges in the domain
name; and

(iii) That the registrant registered and used the name in bad faith.”

The process of getting redressed under UDRP is conducted online with a single
electronicand hard copy document submission of facts and legal arguments which
makes the process simple and easily accessible. Service of process can be
achieved by email to the address in the registrar’s record. Under the rules of UDRP,
the panelists take their decisions on whichever law they think as fit in a
particularcase.

Butdespiteitsobviousachievement,lackoforaltestimonyandrulesofevidenceinthesepa
per proceeding makes it difficult to evaluate the disputed facts and ascertain the
credibility of the evidence produced. Panelists deliver the judgment only on the
evidences produced in front of them, so they have to regard that as reliable where
there is lack of documentary evidenceeven
inthecasesoflegitimateinterest.Soisitnotnecessarythatsameorrightconclusionisreach
ed in this type of Resolution Policy as the decision in UDRP or courts would differ
according to where better evidences are put forth. Moreover the decision of the
UDRP is not binding on
thecourtsoflandwhichsometimesturntobedefeatingtheveryinitiationofdecisionbyUDR
P
andthetrademarkownersarethevictimsofsuchthing.Asalsoseen,inthecaseofReferee
Enterprises Inc. v Planet Ref. Inc., 90where the dispute was between the
magazine publisher and another publisher on online medium, the plaintiff initiate the
UDRP proceedings in the basis of his ownership on the term referee as hid
magazine title, challenging his rivals mark “ereferee” on domain name, the panel
negated the complaint on the ground that the wordused by the plaintiff is the word
which is generic in nature the publisher subsequently filed thecase against the
inferior alleging him violating the federal trademark law, the court in response
granted the preliminary injunction which was broad to the extent that it prohibited
the defendant to use all the domain names having the word in dispute court did not

90
2001 U.S. Dist. LEXIS 9303

104
take thenotice of UDRP proceedings and did not mention the decision in its ruling.
Furthermore in a case where the applicant brought the subsequent suit in the court
after being defeated in the UDRP proceedings, the trademark owner moved to
dismiss the action on the grounds that it do not have sufficient grounds to vacate
arbitral award of UDRP, the court denied this argument by saying that Federal
Arbitration Act do not applies to the UDRPproceedings.

The case Maruti.com et al. v. MarutiUdyog Ltd. et al., 91 where MarutiUdyog, an

Indian company with a well-known name in India, has already registered
marutiudyog.com as its domain name in the United States, is one of several cases of
the system failing. The domain name "maruti.com" was obtained by the respondent.
When the appellant filed a lawsuit with the WIPO, the panel ruled in favor of Udyog.
In addition, the respondent has been labeled a cyber squatter by the WIPO panel
three times in WIPO arbitration cases brought by Onida, Hero Honda, and Maruti.
However, when the matter was brought to the US courts, the WIPO panel's rulings
were deemed non-binding. Even the Anti-Cybersquatting Consumer Protection Act
of the United States was said not to apply. The court ruled that since Maruti did not
make or market cars in the United States, it was not entitled to trademark rights
under the Lanham Act of 1946.

3.5POSITION IN INDIA

Another question that needs to be resolved is whether or not the country's

trademark laws are sufficient to remedy the situation.
The court in the case of Satyam Infoway Ltd v. Sifynet Solutions (P) Ltd, 92
which was decided in 2004, nailed the Indian domain name situation, citing that-

“As far as India is concerned, there is no law that specifically applies to domain
name dispute resolution. While the Trade Marks Act of 1999 is not extraterritorial
in nature and does not have appropriate safeguards for domain names, this does
not preclude domain names from being lawfully covered to the degree practicable
under passing off laws.”

91
447 F. Supp. 2d 494 (D. Md. 2006)
92
2004(3)AWC 2366 SC

105
 In India, since, there exists no direct law to wrestle the threat of such disputes;
hence courts have largely used the principle of passing-off.

Despite the fact that the national court system is not constrained by the WIPO
Arbitration Panel's ruling, they have made numerous judgments and judicial
decisions based on the ICANN's UDRP Policy, demonstrating that the courts
consider the UDRP's policies and decisions to be of sound authority on the
subject.Oneoftheexamples
demonstratingthesameisManishVijv.IndraChugh,93inthiscase,With the copyright
and domain name "www.kabadibazaar.com," the appellant was selling
secondhand goods on the internet. Within a month of plaintiff's launch, defendant
launched "www.kabarribazaar.com," claiming a larger media profile than plaintiff.
The complainant filed a complaint with the WIPO Uniform Dispute Resolution
Policy, 1999, alleging that the defendants registered the domain name
"www.kabaribazaar.com" with a malicious intent. The panel held that it was not
possible to prove that the registration of the domain name was in a bad faith as
“Kabadi- bazaar” is a common term in the hindi language and so the plaintiffs
domain name had not acquireda secondary meaning. It also referred to the Rules
4 (a) and 4 (b), found that both parties had
operatedtheirwebsiteswithinamonthandwhiletheplaintiffwasunabletoshowthequant
um
ofbusinesscarriedout,itcan’tbesaidthatthedefendanthadnotincurredadvertisementc
osts. Therefore, it dismissed the plaintiff’s application and vacated the interim
injunction order against thedefendant.

This, thus, can be said that the national courts can easily shift domain name cases
towards ICANN’s UDRP mechanism which is an efficient alternate dispute resolution
remedy easing the over burdened domestic court system of a country.
It is of no argument that UDRP has been proved to be the simplified and cost
friendly way of getting justice over the issue of domain name disputes to tackle the
online disputes affecting the landmark owners in an era of online world but a lot is
still to be done to make it a better working at the territorial level. The global
experience has shown that many other countries have even tried to plug the legal

93
AIR 2002 Delhi 243

106
lacuna by passing separate law for dealing with the problem like US has passed
Trademark Cyber Piracy Prevention Act, 1999. Likewise, India also needs
alawregardingthesamesincebringingthepassinglawprincipledoesnotprovideforanenti
re solution to the issue in question. There should be a provision for easier and
supplemental
methodofregisterforeachStateundertheIndiantrademarklawsothattheownerwhowant
s a territorial registration only does not have to be tortured with ‘n’ number of
procedural formalitiesduetowhichalotoftimecanalsobesaved.Theperiodofnon-
useofatrademark forfiveyearsasagroundforrevocationshouldbereducedtothree
yearsunderthe Indianlaw so that one does not take advantage of getting a name
registered from stopping some other squatter to use the same as they know how
tedious and lengthy the process of litigation is. Another suggestion is that there
should be a provision regulation of cyber crimes especially cyber squatting, not only
under trade mark law but also in Information and Technology law in order to protect
the rights of the legitimate claimers at territorial as well as extra-territorial level.

3.6LET’S SUM UP

In this chapter, we have learned legal position under trademark law for protection of
trademark in cyberspace. The chapter also discusses the issue of inadequacy of
laws for dealing with this matter. It further outlines as to how UDRP (Uniform Dispute
Resolution Policy) deals with the same situation at an extra-territorial level according
to the mechanism provided by ICANN (The Internet Corporation for Assigned Names
and Numbers). Finally, we learned about some suggestions as to how Indian
Trademark Laws can make the working of UDRP better by working on its own laws.

3.7FURTHER READING

WIPO Guide to the Uniform Domain Name Dispute Resolution Policy

(UDRP); WIPO; Date of Access: 24.10.2019
<https://www.wipo.int/amc/en/domains/guide/>

Summary of the Berne Convention for the Protection of Literary and

Artistic Works (1886); WIPO; Date of Access:

107
 24.10.2019< https://www.wipo.int/treaties/en/ip/berne/summary_berne.htm
l>

Summary of the Rome Convention for the Protection of Performers,

Producers of Phonograms and Broadcasting Organisations (1961); WIPO;
Date of Access: 24.10.2019
<https://www.wipo.int/treaties/en/ip/rome/summary_rome.html>

Aurélie Pols, , Karolina Lubowicka: OECD Guidelines: 8

Privacy Principles to Live By; PiwikPro Dated: 21.09.2018; Date of Access:
24.10.2019 < https://piwik.pro/blog/oecd-guidelines-8-privacy-principles-to-
live-by/>

Linking, Framing, Meta Tags, and Caching; Date of Access: 24.10.2019

< https://cyber.harvard.edu/property00/metatags/main.html>

Linking, Framing, and Inlining by Richard Stim; Nolo; Date of Access:

24.10.2019 < https://www.nolo.com/legal-encyclopedia/linking-framing-
inlining-30090.html>

3.8CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What are the elements to establish the complaint under UDRP?

A claimant must define the following three elements to succeed under the UDRP:
(i) “Because the domain name is identical or confusingly similar to a
complainant's trademark or service mark;

(ii) That the registrant has no ownership or legal privileges in the domain
name; and

(iii) That the registrant registered and used the name in bad faith.”

2. Provide the provisions for trademark protection.

Under the current law, section 29 provides for the protection of registered trademark
and the protection for unregistered trademark has been provided in section 32.

108
However, the act is silent on the protection for trademarks infringement in the
cyberspace.

3.9ACTIVITY

Discusses the legal position under trademark law for protection of trademark in
cyberspace. (Word count 2000-2500)

Unit 4: DOMAIN NAMES, THE 4

INTERNET, AND TRADEMARKS
Unit Structure

4.1 Learning Objectives

4.2 Introduction

4.3 Internet domain name and trademark infringement

4.4 Judicial Pronouncements

4.5 Should domain name be protected as trademark

4.6 Special challenges to traditional trademark law post by domain name registration
on the internet

4.7 Let’s sum up

4.8 Further reading

4.9 Check your progress: Possible Answers

4.10 Activity

109
4.1 LEARNING OBJECTIVE

In this chapter, we will learn-

The unique problems that conventional trademark law faces as applied on the
Internet.
The controversy on trademarks and domain names is addressed by
assessing the benefits and limitations of the InterNIC regulation on domain
name registration.
Possible solutions offered on domain names.

4.2INTRODUCTION

Law academics have spent the past few years examining how digital data transfer
over the Internet - the world's largest computing network - has questioned and
tested existing legal principles and doctrines, especially in the field of intellectual
property. For those attempting to preserve the goodwill and intrinsic meaning
encapsulated in a trademark, the Internet presents special challenges. The alleged
violation of established trademark rights by computer users who register allegedly
infringing domain names, or computer addresses, will be addressed in this chapter,
as will the settlement of conflicts between two would-be users with legal claims to
the same domain name. 94

The Internet is a global network of interconnected data networks that connects

94
See generally Gary W. Hamilton, Trademarks on the Internet: Confusion, Collusion, or Dilution?, 4 TEx.
INTEL. PROP. L.J. 1, 2 (1995); Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging
Law of Cybermarks, I RICHMOND J.L. & TECH. 1, $ 2 (April 10, 1995) .

110
millions of users and enables them to exchange and transmit resources and
information. There is no single government that controls or regulates the Internet.
As a result, "there is no central body to control Internet access, no one to ask for
permission to enter the network, and no one to report to when things go wrong"
since each machine connecting to the Internet operates autonomously and is only
supervised by its own systems administrator. The United States Department of
Defense created the Internet to link geographically distributed scholars.

The Internet, on the other hand, now links millions of people around the world,
provides a high-speed, reliable, and effective networking network by which people
can access, exchange, and distribute a vast array of information and services.

In recent years, commercial use of the Internet has accelerated, converting the
network infrastructure from a testing instrument to a digital marketplace capable of
serving millions of consumers worldwide. ' As a result, many businesses have
positioned themselves to sell their products and services over the Internet in order
to tap into a demand of 30 million potential customers. Just 30,000 businesses
used the Internet in December 1994, but by February 1996, 175,000 businesses
had a kind of online presence. By January 1996, over 300,000 people and
businesses had created home pages on the World Wide Web, a branch of the
Internet that offers a hypertext-based distributed information system that allows
users to build, search, and delete hypertext records. 95 This burst of activity has
rapidly transformed the Internet from the "cozy, non-commercial atmosphere"' that
marked its early years to a platform for commercial retailers to advertise, market
goods and services, distribute software and other devices, and provide on-line
services.

4.3INTERNET DOMAIN NAMES AND TRADEMARK

INFRINGEMENT

A. What is a Domain Name?

Other users must be able to identify and find each device or user connecting to
the Internet. As a result, each user is given an Internet Protocol Address (IP

95
Thomas K. Thomas, NIXI To be Registrar for .in Domain Name, October 27, 2004, available
athttp://www.thehindubusinessline.com/2004/10/27/stories/2004102701720700.htm

111
 Address), which is a specific string of numbers separated by intervals that
represents various fields, such as 123.101.23.128. A network component of these
strings of digits identifies the particular network to which the user is associated,
while a local address identifies the user within the network. Unfortunately, IP
addresses are unwieldy and difficult to remember. As a result, the IP Address
system has been replaced by a more user-friendly domain name system, in which
IP Address holders are given a mnemonic designation that is easy to recall. The
numeric IP address that corresponds to the designated mnemonic domain name
address is automatically looked up by computer programs that link users to the
Internet. 96

To designate fields, domain names are made up of a series of characters divided

by intervals. A term that can readily distinguish the holder of the address, such as
an individual's or company's name, a brand name or trademark, or a nickname, is
often used in domain names, accompanied by a three-letter abbreviation that
designates the user's form of organization.

B. Trademark Skirmishes on the Internet

The commercialization of the Internet has resulted in a series of legal battles

between trademark owners and Internet users that have registered domain names
that could infringe on the trademark owners' rights. These conflicts clearly
demonstrate the conflicting interests at stake and the kinds of controversy that the
domain name registry system has sparked.

4.4JUDICIAL PRONOUNCEMENTS

1. MTV v. Adam Curry 97

MTV Networks (MTV) sued Adam Curry, one of its former video disc jockeys, in
October 1994, claiming copyright infringement in connection with Curry's use of the
domain name "mtv.com" to find his Internet portal. To decide who had legal rights to

96
Eric Misterovich, Domain Names as Registered Trademarks, available at https://revisionlegal.com/trademark-
attorney/domain-names-as-registered-trademarks/
97
867 F. Supp. 202

112
use the logo, the two sides went to court in the Southern District of New York. Curry
said that he was granted permission to use the name when working with the
network to create an Internet portal that disseminated regular coverage of film and
music industry gossip. Curry registered the domain name "mtv.com" under his own
name and paid for it with his own money, and he continued to publish regular
updates from the site long after his employment at MTV ended. Curry's website was
very popular, with millions of visitors in the first ten months of its existence.

MTV sued Curry for copyright violation and violation of his work contract after many
failed demands that he stop using the "mtv.com" brand for his website. Despite
Curry's promise to take the case "all the way to the Supreme Court" and his
description of the case as the "Roe v. Wade of the Internet and the technology
superhighway,"84 the case was never resolved in district court. Curry relinquished
the "mtv.com" domain name to MTV on unspecified terms in March 1995, and the
two sides settled their disagreement. Nonetheless, the significance of this case was
undeniable; it was one of the first, and most well-known, 85 efforts to resolve the
risk of patent infringement in cyberspace.

2. Stanley Kaplan v. Princeton Review 98

Stanley Kaplan and Princeton Review, two competing test-preparation firms,

decided to arbitrate the first publicly known instance of "Internet address poaching
and speculation," the crime of hoarding lucrative trademarked names for use as
Internet addresses and keeping them for ransom, in October 1994. In May 1994,
Stanley Kaplan applied to trademark the domain name "kaplan.com" in order to
create an Internet portal to promote its services, only to discover that the name had
already been taken by its biggest rival, the Princeton Review.

Although the Princeton Review's president argued that the domain "kaplan.com"
was registered solely to "mock and harass" Stanley Kaplan, the name poaching had
the potential to harm Stanley Kaplan's company. "Electronic materials disparaging
the consistency of Kaplan Review's offerings and extolling the competitive benefits
of the Princeton Review courses" were presented to users who accessed Princeton
Review's "kaplan.com" platform. Furthermore, users were not informed that the
platform was operated by Princeton Review rather than Stanley Kaplan, raising the

98
https://crushthegretest.com/kaplan-vs-princeton-review-gre/

113
risk of users being misled about the true source of the information shared on the
Internet site.

3. WIRED v. Wire

Wired magazine was pitted against WIRE, a computer network that used the
domain name wire.net, in a trademark/domain name battle that focused on a
related issue: the registration of a domain name that was identical to one already in
use. About the fact that the two organizations provided very different content -
Wired is a monthly newsletter that discusses information technology-related
subjects, and WIRE is a computer network dedicated to women's issues". Wired felt
WIRE's domain name, wired.com, was too close to its own. Despite the fact that
both parties retained attorneys to handle the dispute, the parties reached an
agreement in February 1994 without having to go to court. Wired promised to share
the expense of changing WIRE's name to Women's Wire and ran some
advertisements for the network, which even updated its Internet address to
wwire.net.

Despite the fact that the case was settled amicably, it posed a question not
answered in the trademark/domain name dispute: whether the registry of competing
domain names created such a risk of misunderstanding that one of the names
needed to be modified.

4.5SHOULD DOMAIN NAMES BE PROTECTED AS

TRADEMARKS?

As previously stated, some researchers argue that domain names are not the same
as trademarks and thus should not be considered infringing on existing trademarks.
They contend that domain names are not entitled to immunity since they are similar
to emails. Others, on the other hand, have emphasized that domain names serve
the same function as trademarks: they designate the source of the product, service,
or material being sold over the Internet, and they enable businesses to move their
brand identity and goodwill to the computer network medium. "Domain names will
seem odd because they appear to be both names and addresses; they both locate
and recognize Internet resources," according to the report. If trademark law only
recognized a domain name's ability to find an Internet location, "application of

114
trademark law to domain names... may be problematic." The second essence of
domain names, though, must be considered: their ability to convey the source's
identity. Domain names should be protected as trademarks and accepted as worthy
of infringement on other trademarks when they have such a valuable purpose of
identifying the origins of a product or service. 99

Critics also claim that the new Internet address scheme is rigid and blinkered, since
all business entities are clustered together under the "com" top-level domain
identifier. "The.com top-level domain has become insufficient to satisfy the demand
for domain names from commercial organizations with related or equivalent names
as the Internet has become more commercial," says the study.

4.6SPECIAL CHALLENGES TO TRADITIONAL

TRADEMARK LAW POSED BY DOMAIN NAME
REGISTRATION ON THE INTERNET

This chapter has already discussed how domain names can be licensed under
trademark law and how domain names can be considered potentially infringing on
existing trademarks. However, there are certain quirks in the way domain names
are used on the Internet that should be taken into account when determining how to
handle domain names and trademark violations.

A. Geographic Overlap in Cyberspace

Traditional trademark law states that two firms can use the same trademark as long
as their brands or local markets are sufficiently different to guarantee that there is
no chance of misunderstanding. As a result, Domino's Pizza and Domino's Sugar
will coexist peacefully—and legally—because it's extremely doubtful that a
customer would mix up the two brands' origins. Similarly, the Acme hardware store
in Lewiston, Maine, and the Acme hardware store in Portland, Oregon, can also
legitimately own the name "Acme" because their local markets are sufficiently
distinct to eliminate the possibility of confusion. However, since the Internet is
simply one vast geographic region, one domain name cannot be given to two
individuals or businesses, regardless of how different their goods or markets are.

99
Wipo Cyber Squatting Cases Hit record, available
athttp://www.wipo.int/pressroom/en/articles/2017/article_0003.html

115
In cyberspace, there are no realistic barriers that cause two businesses of the same
name to coexist peacefully and profitably. Moreover, "“Usage of domain names that
act as popular logos of more than one corporation will become more difficult as
businesses continue to use their [Internet] presence to enable consumers to
purchase goods,” as companies begin to use their [Internet] presence to allow
customers to order products. When two entities claim the same trademark under
the current rules, "Even though the other side has been using the logo on which it is
based for several more years, the first to file may be entitled to keep the domain
name. The limitations faced by domain name registrations are obvious in
cyberspace, where local markets that are easily distinguishable in "real space"
converge and combine.

B. Technological Limitations on the Internet

Domain name addresses are limited to 26 characters due to Internet technical

restrictions. "From a 'user-friendly' standpoint, businesses looking to trademark
their domain names have an opportunity - and InterNIC encourages - to make them
considerably shorter than 24 characters," says InterNIC. As a result, businesses
tend to file acronyms rather than their full names, increasing the likelihood that a
given name would be sought by other businesses. Companies who formerly
coexisted in the industry under separate names but with the same acronym now
face the possibility of any legal owner with the same acronym filing the domain
name first.

4.7LET’S SUM UP

In this chapter, we have learned legal position under trademark law for protection of
trademark in cyberspace and its relationship with domain name. We also aalysed the
judicial pronouncements along with relevant legal provisions.

4.8FURTHER READING

Blake T. Bilstad, Obscenity and Indecency in a Digital Age: The Legal and
Political Implications of Cybersmut, Virtual Pornography, and the
Communications Decency Act of 1996, 13 SANTA CLARA COMPUTER &

116
 HIGH TECH. L. J. 321 (1997).
William A. Hodkowski, The Future of Internet Security: How New
Technologies will Shape the Internet and Affect the Law, 13 SANTA CLARA
COMPUTER & HIGH TECH. L. J. 217 (1997).
Jo-Ann M. Adams, Controlling Cyberspace: Applying the Computer Fraud and
Abuse Act to the Internet, 12 SANTA CLARA COMPUTER & HIGH TECH. L.
J. 403 (1996).
Michael P. Roch, Filling the Void of Data Protection in the United States:
Following the European Example, 12 SANTA CLARA COMPUTER & HIGH
TECH. L.J. 71 (1996).
Joshua D. Blackman, A Proposal for Federal Legislation Protecting
Informational Privacy Across the Private Sector, 9 SANTA CLARA
COMPUTER & HIGH TECH. L.J. 431 (1993).
Halina S. Dziewit et al, The Quest for the Paperless OfficeElectronic
Contracting: State of the Art Possibility but Legal Impossibility?, 5 SANTA
CLARA COMPUTER & HIGH TECH. L. J. 75 (1989).

4.9CHECK YOUR PROGRESS:POSSIBLE ANSWERS

1. What is a Domain Name?

Other users must be able to identify and find each device or user connecting to the
Internet. As a result, each user is given an Internet Protocol Address (IP Address),
which is a specific string of numbers separated by intervals that represents various
fields, such as 123.101.23.128. A network component of these strings of digits
identifies the particular network to which the user is associated, while a local address
identifies the user within the network.

4.10 ACTIVITY

Write a detailed note on special challenges to traditional trademark law posed by

domain name registration on the internet. (Word count 2000 to 2500)

117
 Block-4
EMERGING ISSUES IN RELATION
TO IPR AND CYBERSPACE

118
Unit 1: IPR MANAGEMENT:
EMERGING CYBERSPACE
ISSUES IN KNOWLEDGE
1
SOCIETY: A CRITICAL ANALYSIS
Unit Structure
1.1 Learning Objectives
1.2 Introduction

1.3 Rationale for Intellectual Property Rights

1.4 Digital Environment and Copyright

1.5 Internet and Intellectual Property Rights

1.6 Protection of Computer Software: The Existing Regime

1.7 Indian Scenario

1.8 Piracy in the Digital Era

1.9 Let’s Sum Up

1.10 Further reading

1.11 Check your progress: Possible Answers

1.12 Activity

119
1.1 LEARNING OBJECTIVE

In this chapter, we will learn:

Dangers to financial and commercial transactions
Global standards on electronic crime

1.2 INTRODUCTION

Inventions, literary and artistic creations, and marks, titles, pictures, and patterns
used in commerce are all examples of intellectual property (IP) rights granted by
society to persons or organisations. For a limited time, they grant the developer the
freedom to prohibit anyone from allowing illegal use of their land. Industrial Property
(commercial innovations) and Artistic and Literary Property are two types of
intellectual property (cultural creations). Current technical advancements are blurring
this line, resulting in the emergence of hybrid sui generis systems. 100 The industrial
revolution carried with it its own collection of rules governing industry and economic
practice, as well as post-industrial society government. The industrial revolution
impacted many areas of the world, leaving former colonies behind, and the legal
institutions of so-called developed countries were unable to meet the challenges of
industrialization. Meanwhile, the ICR has swept the globe, shattering economic and
political walls and undermining existing rules of the developed world. Most emerging
countries must make a quantum leap in legal development in order to build
capacities to defend national interests and prevent abuse by those who own
technologies whose boundaries are uncertain. The invention of the Internet
Information Highway and Cyberspace has created a challenge for the world today.

1.3RATIONALE FOR INTELLECTUAL PROPERTY RIGHTS

IPR rationale can be divided into two categories:

- philosophical and
- pragmatic approaches.

100
Richard, D, (2004), Intellectual Property Rights and Global Capitalism: The political Economy of the TRIPs
Agreement, 27 (New York: M.E. Sharpe, 2004)

120
 There is no adequate theory of legal scholarship that establishes the basis of
intellectual property rights (IPRs). In the light of rapid technical advancements and
growing rivalry within industries, legal scholars' theories, such as economic
opportunity reasoning, may be considered contradictory. The European Court of
Justice's latest ruling against Microsoft urges a reconsideration of the fundamental
precept governing IPRs.

Philosophical approaches are well known in the tradition of British philosophers

John Locke (1632-1704), Thomas Hobbes (1588-1679), and Georg Wilhelm
Friedrich Hegal of the 18th century (1770-1831). John Locke is a model property as
right theorist. According to Locke, property rights, as all rights, are derived from the
fact that God gave the world to all humans in general, so how can any one
individual possess an exclusive property right in the worldly subject? Locke's
solution is brilliant, and it brings one to the concept of private property rights. Locke
accomplishes this demonstration by distinguishing between the Creator's collective
property and the individual's acquisition of the property. 101

Hegal's insistence on land ownership as a symbol of freedom led to a different

philosophical attitude to intellectual property. George Wilhelm Friedrich Hegel was a
German philosopher. 1770 – 1831 Individuals will create and realize their full
human identities thanks to property tradition. It has been widely suggested that
intellectual property should be unalienable based on this approach. In the light of
natural rights and moral rationales, a fundamental point against IPRs is that
scientific innovations are largely a social production of collective, cumulative, and
interrelated work to which we all contribute, and thus no single individual or
company should be entitled to assert the land.

Jeremy Bentham (1748-1832), Adam Smith (1723-1790), Jean Baptiste Say (1767-
1832), John Stuart Mill (1806-1873), and John Bates Clark all advocated a
pragmatic approach (1847-1938). The fundamental argument of these classical
economists is that IPRs offer "the promise of reward," which promotes innovative
and technical progress by increasing motivation to discover, invest in, and create
new ideas, and without which the innovation inducement will be undermined. The

101
Hegal, G (2006), The Phenomenology of Mind (1806), available at http://www.marxists.org/reference
/archieve/hegal/help/hegelbio.htm

121
 reasoning is that doing research and development and getting an innovation to
market can be a long and costly operation with little promise of success at the end
of the tunnel. 102

Patents have been seen to have a positive effect on the economy in a number of
surveys. Patent acquisition has been shown to improve the pace of innovation in
sectors that depend on patents for intellectual property rights, such as
pharmaceuticals and chemicals. Simon Rose discovered a strong statistical
association between patents filed and GDP, as well as a similar correlation between
patents adjudicated and patents adjudicated. It has been found that after a period of
animosity, the number of patent applications in technical innovation declined,
having a negative effect on the economy. When appellate courts supported patents,
however, the number of patent applications rose, which had a favorable effect on
the economy.

IPR-induced incentives to innovate reasoning for the IPR scheme is based on two
assumptions:
- Without effective incentives, not enough discoveries can be made. In other
words, neither innovation nor manipulation of inventors can occur because
capitalists expect that they can generate wealth, making it worthwhile for them
to invest their time and resources.
- IPRs are the quickest and most powerful way for society to have both
rewards.

According to Robert Merges and Richard Nelson, patents encourage innovation by

offering benefits, but once they are liberally approved, other companies are
discouraged from engaging in the broad range of follow-on innovative work that
enhances or modifies an original invention. They showed how discoveries occur
along multi-product trajectories that are cumulative, direction dependent, and
dynamic in the sense that each discovery in the pathway is based on one's own or
others' current or previous ideas. While there are numerous reasons against patents
as a motivator to discover, use, and distribute money more effectively, the traditional

102
Anderson B (2003), Rational for Intellectual property rights in the Electronic Age, New Economy Handbook
(Elsevier Science, 2003).

122
wisdom by economists, attorneys, and many government officials is strongly skewed
in favor of the proposition that protections promote economic development. 103

1.4 Digital Environment and Copyright

Because of their speed and accessibility, digital technologies have become essential
resources for generating and preserving information. Digital intelligence now plays
an astoundingly important part in financial markets and in all aspects of everyday life.
Copyright law's approach of digital information has been important. The internet, a
prominent feature of our day, can better be described as a multimedia way of
disseminating information and promoting free speech on a scale never before
conceivable. Users interested in gathering resources on a certain topic no longer
need to access or preserve physical copies; instead, they may make these records
accessible on the Internet (without the author's knowledge) by creating a web
document with pointers (hypertext links) to the specified references. The open nature
of modern Internet technologies distinguishes it from other traditional forms of
communication, allowing users to post to a large audience previously inaccessible
due to the limited nature of traditional publication. 104

1.5INTERNET AND INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights apply on the Internet, but enforcing them is complicated.
The cost of reproducing works in digital format is low, and the accuracy of the copies
is nearly flawless. Publishers and other copyright holders claim that the Internet
harms their intellectual property rights by radically altering the structure and means
of publication, leaving their works highly vulnerable to Internet piracy. Because of the
Internet's decentralized management, any person can freely disseminate a work on
the electronic network known as Cyberspace via any number of networks. A
consumer can easily send a job to newsgroups via e-mail or on their personal
website.

103
N.S. Gopalakrishnan, Principles of Intellectual Property, EBC, Lucknow, 2014.
104
Paul Torremans, Holyoak&Torremans Intellectual Property Law, Oxford Univ.Press, 2010

123
1.6 PROTECTION OF COMPUTER SOFTWARE:THE
EXISTING REGIME

Since the demand for computer programmers and communications applications is

rising in size and economic importance, the type of security offered is becoming
increasingly relevant. Software is easily replicable and inexpensive to duplicate. It's
easy to convert from one programming language to the next. The cost of copying
program package for most systems is low in the absence of devices that prevent
copying. Even if direct emulation is impossible, resourceful programmers and
engineers will often reverse engineer programs.

The law governing intellectual property rights has caused issues with emerging
technology, such as computer programmers. The law presumes that everything is
either a written work protected by copyright or a computer protected by a patent, but
not both at the same time. Data engineers, on the other hand, have both authorship
and creativity. As a result of these issues, we are forced to doubt the law's
applicability. Sui Generics is seen as an alternative to the intellectual property model,
allowing security to be tailored. Legislative intervention or treaty negotiations are
needed. Their doctrinal evolution is still taking a long time.

1.7 INDIAN SCENARIO

While the Indian Copyright Act complied with international treaties, the country's
new copyright legislation lags well behind that of the West. There is no similar law in
India to the US DMCA or EU guideline applying the WIPO Internet Treaties since
India did not sign the "WIPO Internet Treaties." The current Indian Copyright Act
makes no provision for "technological security mechanisms" or "electronic rights
management information" protection. The Indian Penal Code, 1860 (IPC), could be
sufficient to offer legal safeguards for technical interventions. 105 'Wrongful benefit or
harm' is specified in Section 23 of the IPC. In the event of unlawful entry to the 'safe
jobs,' this section can be invoked. Section 28, which deals with 'counterfeiting,' will
be used to stop people from stealing safe works.

105
Bently and Sherman, Intellectual Property Law, Oxford University Press, U.K., 200

124
India is one of the top 20 countries in terms of Internet use. Despite its low Internet
penetration rate, India has emerged as the world's software development hub and a
popular destination in this sector. With the increased use of the Internet, copyright
infringement issues relating to multimedia transmission have worsened. This is a
perplexing case. If India offers greater legal safeguards for technical protection
policies with few fair use exceptions, the public domain will be depleted, and the
public interest concept of copyright will be harmed. If legal security for technical
measures is not provided, the Internet can cause havoc with copyright compliance.

The Information Technology Act (IT Act) of 2000 was passed in India to resolve
issues posed by 'cyberspace' in the conduct of electronic commerce. The IT Act
does not have a clear mechanism for dealing with individual Internet copyright
infringement. There are clauses that may be seen as attempting to fix certain facets
of copyrights, as shown by Section 43, which deals with penalties for machine and
machine abuse.

Non-profit organisations such as NASSCOM (National Association of Software and

Service Companies) have been actively participating in the formulation of IT policies
and regulations in India as partners with the Government of India and state
governments. Its efforts are commendable, as it developed the country's first "anti-
piracy" hotline, as well as India's first toll-free anti-piracy hotline. Special police cells
are being developed by state governments to combat copyright infringement.

The worries of copyright owners regarding the risks faced by the digital transition
are valid. The use of technical defense mechanisms has tipped the scales in favour
of right holders at the expense of the public domain. It established a new and
effective "Access right" that is used to prohibit unauthorized copying, which is
allowed under existing copyright exceptions. Under fair dealing standards, technical
safety schemes can be used to avoid infringing replication, reproduction allowed for
educational and archival purposes, and reproduction required for science. In India,
additional provisions will be added to existing copyright legislation to include legal
safeguards for "technological protection initiatives" and "internet rights
management." Conciliating private and public interests is difficult; India cannot
disregard the public interest principle that underpins copyright laws. It could follow

125
 the lead of Japan, which treats ‘non-commercial' use as fair use. 106

Fair use should be used as a counterweight to ensure the proper balance between
public and private interests in the digital world; there is no optimal approach to the
issue of defending copyrighted content in the digital environment. The problem of
computer software theft isn't fresh in and of itself. This chapter seeks to discuss
problems that exist as a result of providing digital applications on the internet, the
way in which piracy happens, the privileges and responsibilities of different parties,
and the actions that can be taken to prevent it. The term "computer programmer" is
described in section 52(I)(ad) of the Indian copyright Act, 1957, as "a collection of
instructions transmitted in terms, codes, schemes, or any other type, including a
machine readable medium, capable of causing a computer to perform a specific
task or achieving a specific result."

The above is based on the World Intellectual Property Organization's definition;

Draft Models Provision for Copyright Legislation. Under the 1977 Model Provisions
for the Protection of Computer Software, the concept consists of three parts:

- Computer programmers;

- programmers' descriptions; and

- supplementary information

The speech of the owners of the copyright, not the concept, is protected by
copyright law. In India, computer software is shielded by copyright law, which
means that only the speech of the software's concept can be covered. 107

1.8 PIRACY IN DIGITALERA

In India, the film industry is struggling to keep up with rapidly changing emerging and
if technology that are challenging current intellectual property laws and market
models. Individual consumers can now easily capture, copy, and share films or
music in digital form without losing content as technology continues to advance

106
AnanthPadmanabhan, Intellectual Property Rights: Infringement and Remedies, LexisNexis, Nagpur, 2012.
107
Harish Chander, Cyber Laws and IT Protection, PHI learning Private Ltd. Publication, New Delhi, 2012, at
page no. 14.

126
globally. 108 Crime in artistic works by collective gangs, which is spawned by such
advancements, is a universal concern. Consumers have been pitted against creators
of films, music, and television programs, and rights activists are concerned that
corporate lobbying is contributing to excessive copyright enforcement that favors
producers.

There is agreement on the need for fair copyright rights, but disagreements have
arisen about the extent of protection. While these debates continue, file-sharing on
the Internet using the peer-to-peer (P2P) paradigm has created a new field of conflict
between music and film fans, as well as the respective industries. Using a specific
P2P program allows for unrestricted sharing among users.

The challenge of illicit copyrighted content distribution has prompted creators around
the world to seek technical solutions. New market models for music distribution have
arisen in Western countries with strict copyright laws which are plagued by piracy
over broadband Internet. Apple Computer's iTunes pioneered one of these for a la
carte music streaming, which was soon joined by related offerings from other major
names in the industry. This contrasts with many copyright owners in India's virtual
reluctance to accept the advent of digital creativity, which allows for the compression
of a vast number of songs for download or sale on compact discs while still
integrating tools to protect the content.

While India's piracy issues are true, the entertainment industry has not made a
significant attempt to address them with a market-based approach. According to a
study conducted by the UK Trade and Industry Department two years ago, piracy
cannibalizes 60% of India's film industry revenues. Some states are attempting to
combat copyright piracy by enacting tough regulations that allow police to arrest
convicted pirates without charge, while the entertainment industry has argued that
state governments can assist in re-engaging moviegoers by tax breaks. 109

Whatever the consequences of these steps, it is apparent that the film and music
industry, which is one of the world's biggest, is stuck in a time warp. Unlike in more
industrialized countries, the entertainment industry in the country is impacted not so
much by P2P providers using the Internet, but by organized gangs using technology

108
Dr. Gupta & Agarwal, Cyber Laws, Premier Publishing Company, Allahabad, 2010, at pg.no.324.
109
Dr. Farooq Ahmad, Cyber Law in India, New Era Law Publication, New Delhi, 2012, pg.no.28.

127
to make large profits by illicit CD replication and selling. 110 The entrainment industry
will have to suffer more profit loss as a result of technical improvements in television
and radio brought on by digitization, along with broader internet access. The
legislation alone could be sufficient to ensure progress in the modern age.

1.9 LET’S SUM UP

We heard in this chapter that the Information and Communication Revolution (ICR),
which is currently sweeping the globe, is undermining existing systems and traditions
in a way that is difficult to comprehend. Governments are being forced to pass
legislation pertaining to the management of information in society due to
unprecedented developments in socio-economic organization and democratic
governance. The Indian Copyright Act, 1957, is the current intellectual property
regime in India that deals with the protection of electronic software. There are no
parts of the Act that deal with electronic software theft over the Internet.

1.10 FURTHER READING

Richard, D, (2004), Intellectual Property Rights and Global Capitalism: The

political Economy of the TRIPs Agreement, 27 (New York: M.E.
Sharpe,2004).
Hegal,G(2006),ThePhenomenologyofMind(1806),availableathttp://www.marxi
sts.org/reference/archieve/hegal/help/hegelbio.htm (6/08/2006)
Plant, A (2007) The Economic Theory Concerning Patents for Inventions, 1
Economica,30-51
Anderson B (2003), Rational for Intellectual property rights in the Electronic
Age, New Economy Handbook (Elsevier Science,2003).
CarrierMA(2002),UnravelingthePatent-
AntitrustParadox,150U.Pa.L.Rev.761(Jan2002).
Roe, S A (1999) Patent 'Monopolyphabia: A Means of Extinguishing the
Fountainhead? 49 Case W Res. L.Rev. 509 (1998-1999) at 514; Mark Grdy
and Alexander, Patent Law and Rent Dissipation, 78 VA. Rev. 305 (1992)
at307;

110
Tabrez Ahmad, Cyber Law and E-Commerce, APH Publishing Corp., New Delhi, 2003, at Page no.25.

128
 David M Gould and William C Grubben, (1996) The Role of Intellectual
Property Rights in Economic Growth,48 J. Dev. Econ. 323 (1996) at333.

1.11 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. Is IPR applicable on Internet. If Yes, then why is not enforceable?

The cost of reproducing works in digital format is low, and the accuracy of the copies
is nearly flawless. Publishers and other copyright holders claim that the Internet
harms their intellectual property rights by radically altering the structure and means
of publication, leaving their works highly vulnerable to Internet piracy. Because of the
Internet's decentralized management, any person can freely disseminate a work on
the electronic network known as Cyberspace via any number of networks. A
consumer can easily send a job to newsgroups via e-mail or on their personal
website.

1.12ACTIVITY

Write a detailed note on need to bring more legislations like the Information
Technology Act, 2000 in today’s time. (Word count 2000 to 2500)

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Unit 2: CHALLENGES TO
COPYRIGHTABLE WORK IN 2
CYBERSPACE
Unit Structure
2.1 Learning Objectives

2.2 The page and Introduction

2.3 Internet and India

2.4 Why is copyright ill equipped to deal with the internet?

2.5 Basic challenges for Intellectual Property Rights

2.6 Basic Copyright Problems in regards to Internet

2.6.1 Determination of Public and Private UseThe-and then she went home
and will you be a lack of time that the

2.6.2 Problem of Distribution and Reproduction Rights

2.6.3 Enforcement of Li on the homepage on, maintaining and they should

have the time, and ability

2.6.4 Problems which have no solutions

2.7 Copyright in the Age of Napster and Beyond

2.7.1 What the evolving napster case stands for

2.7.2 MGM v. Grokster

2.7.3 Cyber Jurisdiction – the Indian View

2.8 The Future of Copyright

2.9 Let’s sum up

2.10 Further reading

2.11 Check your progress: Possible Answers

2.12 Activity

130
2.1 LEARNING OBJECTIVE

In this chapter, we will learn:

the meaning of cyberspace and the state of Internet-related issues in
India,
fundamental intellectual property issues,
why copyright is ill-equipped to deal with the Internet,
copyright's essential problems in relation to the Internet, including
determining public and private usage and enforcing liability,
The Indian scene in terms of cyberspace control, and
the future of copyright.

2.2 INTRODUCTION

Cyberspace is a futuristic universe that, while logically only existing in computer

memory, is immersive and alive. One can meet and speak to new people in
cyberspace, read, write, learn, listen to music, watch videos, look at art, buy and
sell items, view government records, submit e-mail, download apps, and get
technical help. As more content is uploaded and accessed, and as more people
enter the founders of this brave new age, cyberspace is a breathing organism
that is continuously evolving. Our legal framework is yet to catch up. This isn't
always a negative thing; the legislation always lags behind societal movements
before resolving itself. While this modern frontier may never stop emerging, we
might also be too early in its development to figure out how to control it.
However, as it becomes more embedded (and integral) into our everyday lives,
many people are confused with what constitutes appropriate behavior in this
modern setting. 111
The defense of intellectual property — works of the imagination — is one of the
most pressing concerns surrounding the Internet. Literary books, images, sound
recordings, and other artistic works are protected from being reproduced without
the consent of the copyright holder under Sections 13 and 63 of the Indian

111
Saha, Subhasais&Keshri, Sourav. (2008). Challenges to Copyrightable Work in Cyberspace. 13.

131
Copyright Act, 1957. It's also uncertain if copyright law would apply to these
materials when they surface on the web. 112

2.3 INTERNET AND INDIA

In India, the Internet infrastructure is rapidly expanding. On August 15, 1995, Videsh
Sanchar Nigam Limited (VSNL), a public sector undertaking responsible for all
international telecommunication services from India to other countries, launched
commercial Internet services. Prior to that, only a few groups had access to the
Internet, and the overall number of subscribers was under 10,000. In India, the
number of Internet users has surpassed 150,000 and is increasing on a regular
basis. People's imaginations have also been captured by the Internet.
According to a survey conducted by the National Association of Software Companies
of India (NASSCOM), the demand for Internet connectivity in India is projected to be
as seen in Table 1. 113
While India's Internet users make up a small percentage of Indian the global total, as
the Executive Director of NASSCOM put it in a recent post, "if the western world is
riding high on the information superhighway, India has begun its effort to be on the
Net, by at least building its own information super footpath."

Issues of intellectual property rights (IPR) security are expected to become more
prominent as the Internet grows. Currently, the country is focusing on infrastructural
growth in order to meet the need for Internet access within a few years.
Table 1 — The demand for Internet connections in India

Year No. of Connections

1998 4,50,000
1999 8,00,000
2000 1,500,000
2001 3,500,000
2002 8,000,000

112
Akdeniz, Y., Walker, C. and Wall, D. (2000) The Internet: Law and Society, London: Pearsons Longman
p.45
113
David Bainbridge, Introduction to Computer Law ,Fourth Edition 2000, Pitman Publishing , Edinburgh Gate
, England .p 15

132
The internet has reached every corner of the world. Prioritize the creation of a high-
speed national telecommunications backbone and the availability of sufficient
telephone lines. To make Internet services more available, nodes have been built in
over a dozen cities across the world. The government has agreed to allow private
firms to offer Internet services in order to increase access to this advanced and fast
means of communication network. With the arrival of private Internet service
providers, India could quickly overtake the United States as the world's largest
Internet customer, as it did with cable television. The expanded use of the Internet
would make IPR security more difficult than it is now. Although the Internet is primed
for a quantum leap in the world, it would be premature to propose realistic solutions
to the Internet's intellectual property rights concerns, given the lack of experience
with such issues. Intellectual property rights (IPR) problems exist now, but they are
more theoretical than practical. 114
The Copyright Act is currently the most powerful tool for dealing with IPR problems
on the Internet. The Indian Copyright Act, which was first enacted in 1957, was
overhauled in 1994. It has become a forward-looking piece of law as a result of these
changes, and the general consensus is that the revised Act is worthy of dealing with
copyright problems posed by emerging technology, especially those of the Internet.
The Act has adapted to the modern age by dropping some limiting clauses and
phrases and extending the meanings of works like cinematograph films (motion
pictures) and sound recordings (phonograms) to incorporate certain works in ‘any
format' within their purview. It depends, though, on how case laws evolve as Internet
IPR disputes are brought to court.

2.4 WHY IS COPYRIGHT ILL EQUIPPED TO DEAL WITH

THE INTERNET?

Copyright dates back to the printing press period. Printing presses were operated by
a small number of individuals. There was a good benefit as people wanted to steal
books, but the pirated books could be traced and were a good indicator of
infringement. A typical person could not make a copy of a book and distribute it to
friends or sell it on the market. Overall, the device seemed to perform very well. But
then came the twentieth century, with its marvelous new inventions. Many of these

114
David Bainbridge , Intellectual Property (3rd Ed.1996 ) p 19

133
advancements, such as photocopiers, tape decks, and VCRs, have altered the
relationship between copyright owners and future copier. Although access to
computers used to be a deterrent to public copying, modern technologies allowed
the ordinary citizen to photocopy papers, tape albums, and archive their favorite
television shows. 115 What does one know? The film companies remain as dominant
as ever, and copyright is still alive and well.
Copyright is now facing the toughest test ever on the Internet. The first is the
simplicity with which it can be replicated. If one wishes to save this file, he would
have an exact replica of the original. Furthermore, he could make as many copies as
he wanted. The benefit of modern media is that it does not degrade with repeated
copies. For others, this is both a blessing and a curse. When faced with a similar
situation with the introduction of digital audio tapes (DAT), which allowed for flawless
copying of audio recordings, the industry decided to stifle its invention by not
allowing second-generation recordings to be made from its tapes (despite intense
opposition from the music industry). In addition, the DAT producers charged the
record labels a royalty for any tape deck sold, ostensibly to compensate for missed
revenue.

Another important factor regarding digital media is the ease of transmission and
multiple uses. Another critical aspect of modern media is the speed of dissemination
and versatility. For instance, if someone has a copy of this paper on their computer
and wishes to give it to one of their mates. He will send it to you via email. Similarly,
if he owns a book, he may lend it to him; copyright laws do not prevent this. Once he
has the book, he will do whatever he wants about it — this is known as the "first
sale" doctrine. He's also allowed to resell it without violating the copyright. While e-
mailing this paper to him could seem to be a straightforward analogy to loaning it to
him, there is one significant difference: he may give it to him without ever
relinquishing custody of it. In other words, he already has a copy on his hard disk,
and the other guy now does as well. Where there was once just one, there are now
two. This dilemma is exacerbated as you consider the fact that he enjoys the paper
and wants everyone to read it. He uploads it to a network rather than sending it to
individuals via e-mail. Many people will now read it, copy it, and so on. Who knows

115
BerntHugenholtz ,Institute for information law ,Faculty of Law ,University of Amsterdam Why the Copyright
Directive is Unimportant, and Possibly Invalid.Published in [2000] EIPR 11, p. 501-502
athttp://www.ivir.nl/publications/hugenholtz/opin ion-EIPR.html

134
how many copies are still out there?
The equivalence of works in print medium is another feature of digital media. Both
computer works are nothing more than little bits of data that a computer can
interpret. Under the copyright statutes, protectible works of authorship are classified
as very particular types of works, with differing regulations and exemptions based on
the quality of the piece. Though there are some fuzziness in the distinctions between
subjects, it is usually not difficult to differentiate between them. While software
programs are called literary works in the case of modern media, the actual effects of
such lines of source code may be viewed as a variety of traditional subject matter.

CD-ROM devices, for example, are in the forefront of widely distributed technologies,
combining audio and video into immersive games. Virtual Reality is now open to the
general population, although in its infancy, and it's only getting better — for both
entertainment and science purposes. The World Wide Web, like Gibson's
cyberspace prophecy, is a showcase for what these little pieces of knowledge will do
on the Internet. Not only could this paper be read by hundreds of thousands of
people, but the text is only the beginning. 116

2.5 BASIC CHALLENGES FOR INTELLECTUAL PROPERTY

RIGHTS

The Internet presents IPR administrators with two fundamental challenges: what to
manage and how to administer. Only when a consensus on IPR topics in the Internet
can be reached can the first challenge be faced. The IPR administrator faces a
unique difficulty of balancing the rights of various actors on the Internet, such as
content providers, distribution providers, and access providers. This must be
accomplished without jeopardizing the free exchange of knowledge while still
guaranteeing that the legitimate economic rights of intellectual property creators are
not jeopardized. The Internet's intellectual property rights are reliant on it. If the IPRs
on the Internet have been determined, the task for the IPR administrator is to
determine the most cost-effective way to implement them.

116
Niels Ferguson ,Censorship in action:why I don't publish my HDCP results August 15, 2001at
http://www.macfergus.com/niels/dmca/cia.html

135
Although there are no two minds on the importance of securing IPR on the Internet in
the interests of authors, the implementation of such rights over this medium is likely
to be difficult due to the technical device's sophistication. The compliance
mechanisms would almost certainly necessitate the use of costly and sophisticated
electronic equipment. After all, "the machine's response is the machine," and each
new machine appears to be more expensive than the previous one. Will the costs of
the interventions become so high that developed nations are forced to abandon the
Internet? Would the protection of intellectual property rights on the Internet result in
the planet being divided between those who have access to technology and those
who do not? When it comes to the IPR problems of the Internet, these are the sorts
of issues that must be answered.

In India, the Internet is still in its infancy. The majority of the questions posed in this
paper are hypothetical and have not been encountered in reality. However, in order
to accelerate the development of the Information Superhighway without jeopardizing
the rights of copyright owners, it is important to investigate them thoroughly and find
solutions. The golden mean between the general interest and the interests of the
authors and disseminators of copyright works should be sought. 117 Around the same
time, the latest IPR standards would not result in a widening of the gap between
developed and emerging countries.

2.6 BASIC COPYRIGHT PROBLEMS IN REGARD TO

INTERNET
2.6.1 Determination of Public and Private Use:
Determining the line between private and public use is one of the most fundamental
copyright problems on the Internet. The Indian Copyright Act, like all copyright laws
around the world, distinguishes between copying for public and private use.
Reproduction for public use requires the consent of the right owners, while the
statute permits equal dealing for private use, study, critique, or analysis. 118 This
distinction is undermined by an individual's freedom to distribute some copyrightable

117
John Naughton ,A conspiracy against the public Online commentary Sunday March 16, 2003 at
http://media.guardian.co.uk/newmedia/comment/ 0,7496,915043,00.html
118
Charles Clark, General Counsel, International Publishers Copyright Council Copyright Representative,
Federation of European Publishers, The copyright environment for the publisher in the digital world
http://users.ox.ac.uk/~icsuinfo/clark.htm

136
work to a large number of users simultaneously over the Internet from the privacy of
his or her house, and users' ability to receive a perfect copy of the material
distributed simultaneously in their homes. Many believe that the disappearance of
the fine line between public and private lands necessitates a new generation of
copyright norms.

Any common ideas have been turned on their heads as a result of the Internet. The
publishing industry is a good example. Publishers of books and music had entered
the market with the start of the industrial revolution and the era of mass
manufacturing. They've been so ubiquitous that authors can't imagine a future
without them. The Internet, unlike books, is a tool that eliminates the intermediary
between a writer and his or her reader. The author may publish his or her work on
the Internet, which the reader can see directly. If the printing press gave birth to the
publishing industry, the Internet has sounded an alarm bell, if not the death knell, for
that industry by encouraging every writer to be his or her own publisher. This begs
the issue of whether or not making a work available on the Internet qualifies as
"publication." For the purposes of copyright, the Indian Act defines ‘publication' as
‘making a work accessible to the public by issuing copies or communicating the work
to the public.' Because of its non-restrictive nature, this term can be interpreted as
including electronic publishing and, as a result, ‘publication' on the Internet.
However, it will take a few years for electronic publication to make a significant
impact in India.

The question of whether communicating over the Internet qualifies as "public

contact" remains unresolved. The Indian Copyright Act has a detailed description of
"public correspondence." According to the Act, "communication to the public"
requires "making any work accessible for the public to view, hear, or otherwise
appreciate directly or by any means of exhibition or diffusion other than issuing
copies of that work, regardless of whether any member of the public currently sees,
listens, or otherwise enjoys the work so made available." This term is considered
broad enough to include Internet networking within its scope. If the courts take this
opinion, Internet service providers in India would have a difficult time determining
who owns the rights to the Internet's content.

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2.6.2 Problem of Distribution and Reproduction Rights:

The distributing right in Indian law, like most copyright laws, is exhausted with the
first transaction. Currently, a student may freely sell a used textbook, and a library
may freely distribute the books it has bought among its representatives. Since no
copy can be transmitted without replication on the Internet, dissemination becomes
entangled with reproduction.

On the Internet, the freedom to reproduce raises a number of serious issues. This is
due to the fundamental essence of Internet transmission. Any stage of transmission
involves reproduction. Temporary copying (also known as caching) 119 is an essential
aspect of the Internet communication mechanism through which messages will not
be able to pass across the networks to reach their intended destinations. And if a
user just needs to browse, transient copying occurs on the user's screen. Coverage
of temporary reproductions was a contentious topic at the December 1996 World
Intellectual Property Organization (WIPO) Diplomatic Conference, which ended in a
deadlock. Can a reproduction be prohibited where it occurs in the form of permitted
use of the work and its primary objective is to make the work visible, or when the
reproduction is of a temporary or incidental nature? Reproduction in India is required
to be in a physical way, but it also requires "storing it in any medium through
electronic means." Case rules are yet to specify whether reproductions occurring in
Internet correspondence are covered by the law's right of reproduction, but views on
temporary and permanent reproduction, as well as the validity of temporary
reproduction, will continue to differ. 120 It would be curious to see how the courts add
the idea of economic relevance to a reproduction in order to get it under the
Copyright Act's right to reproduction.

2.6.3 Enforcement of Liability:

The problem of responsibility is perhaps the most important one in terms of copyright
law. For one thing, there's the question of responsibility for actions committed during

119
Justice Laddio, "Copyright, Over-strength, Overregulated, Over-rated", (1996)5 EIPR 253.
120
Prof.J.E.Cohen (1998) , Some Reflections on Copyright Management Systems and Laws Designed to Protect
Them, 12 Berkeley Tech L.J. 161 at 169

138
the delivery of a legitimate (as opposed to an infringed) copy of a work. As previously
mentioned, the question is highly dependent on the judiciary's view of different legal
rights. If the courts decide that in-transit copying, for example, is a breach of a
patent, so concerns about damages will emerge. Who should be made accountable?
Who sends the job out, who gets it, and who is the Internet service provider (ISP)?
The solution may not be simple to come by. The other thing is the transmission of a
specifically infringed copy of a job over the Internet. The question here is whether an
ISP should be found responsible for a subscriber's copyright violation even though
he is unaware of the subscriber's behavior.

According to Section 79 of the Information Technology Act of 2000, where the

subscriber may show that the crime or contravention was done without his
knowledge or that he used any reasonable efforts to avoid the offence or
contravention, he would not be found responsible under the Act. The Indian
Copyright Act stipulates that the violation or abetment of the infringement must be
done "knowingly" by an individual while defining copyright offenses. It is likely that,
because of the word "knowingly," an ISP, which might or might not be aware of the
subscriber's copyright violation, may be exempt from prosecution and penalty. This,
though, poses a new problem. Even if the ISP is not criminally liable under Indian
law, he can be held liable under the laws of another region. How will we control this,
given that the Internet is completely universal and does not respect national
borders? The networks are scattered around the globe, and a message or piece of
information may pass through many countries before arriving at its final destination.
The ISP may not be liable in the country of origin or the country of destination, but it
may be liable in a transit country. Second responsibility arguments of contributory or
vicarious violation make ISPs and software developers legally responsible for
copyright infringement. A contributory infringer is described as "one who, knowing of
the infringing behavior, induces, triggers, or materially contributes to another's
infringing actions." In order for the provider to be found liable, there must have been
an actual violation, and the provider must have committed some contributory or
vicarious copyright infringement. 121

121
ThiliniKahandawaarachchi, Liability of ISP for third party online copyrights infringement: A study of the US
and Indian Laws, journal of intellectual property rights,Vol 12, pp 553- 561, Nov 2009

139
The regulation of national IPR rules, which are bound by federal jurisdictions, raises
difficult challenges in the seamless world of the Internet. This is an environment
where international harmonization of laws is critical; otherwise, the possibility of
litigation in some countries which force the Internet service provider to examine the
content being distributed for copyright approval, causing the whole procedure to be
delayed. This could turn the Internet into a "World Wide Wait." The aim should not be
to stifle knowledge flow, but rather to accelerate it. 122 A paradigm change occurs with
any significant technical advancement, and the Internet is no different. New norms
will be required to assign liability to the appropriate parties; an Internet service
provider is not always an enabler of copyright infringement.

The variety of challenges that the Internet presents for IPR protection makes us
wonder if copyright legislation would be adequate to face the burden, or whether we
should pursue a unique IPR protection scheme. In reality, to face the current
technical demands, there is a widespread movement to think in terms of unique
ways of defense. Designer rules for intellectual rights of manufacturing designs, plant
types, and integrated circuits have thus been enacted. Sui generis security is being
considered for databases and folklore. Although copyright laws have become more
flexible over time to accommodate modern ways of production, they do have a lot of
rigidity. 123 Copyright does not cover inventions, processes, or technical features
because of the idea-expression dichotomy, which is fundamental to the copyright
doctrine. A sui generis type would, by definition, have much more versatility in terms
of its reach, level, and duration of security. But it also requires a desire to try new
things, as well as a willingness to let the legislation change by trial and error.

2.6.4 Problems which have no Solutions:

Differences in cultural perspective can have an effect on the appropriateness of
content communicated over the Internet in some cases. Many literary, musical, and
cinematic expressions that are permissible in western cultures may not be

122
Raman Mittal, online copyright infringement liability of internet service providers, journal of the indian law
institute [vol. 46 : 2]
123
R. MurugaPerumal, Copyright Infringements in Cyberspace: The Need to Nurture International Legal
Principles, International Journal of The Computer, the Internet and Management Vol. 14.No.3 (September-
December, 2006) pp 8-31

140
acceptable in more conservative societies such as India. A national government may
exert some restrictions on books, music, literary works, and cinematographic films;
this is also possible to a large degree for broadcasts and telecasts. How can we do
this in the case of Internet communication? It is impossible to provide police at
national borders on the Internet. Controlling and filtering content that spreads across
the Internet presents a number of functional challenges. It is possible to intercept
content that is indecent in nature (prurient or lascivious) under Section 69 of the IT
Act, which currently provides the ability to ban websites. Such action may also be
taken against pornographic websites, which is why there isn't any pornography
hosted in India. And so, the Internet is also much too big and amorphous to be
controlled. 124 When an infringing site is blocked, a hundred more can appear in
different locations. The amount of knowledge available on the Internet is enormous,
and it is spread out across the world, not just in one region. Any government will be
unable to censor it. When media sources are small, censorship is a possibility. There
is a significant distinction between traditional broadcast channels such as television
and radio and the Internet. There is one broadcaster and many viewers or listeners
in the former, while an overwhelming number of ‘netizens' are concurrently inputting
and viewing information in the latter. What kind of technological devices are capable
of regulating the Internet's dynamic matrix, in which any consumer point is also a
production point?

2.7 COPYRIGHT IN THE AGE OF NAPSTER AND BEYOND

2.7.1 What the Evolving Napster Case Stands for:

The Napster case, including Judge Patel's well-researched decision granting the
record label and music distributor plaintiffs a preliminary injunction, and the 9th
Circuit's further review of the fair use factors posed as an affirmative defense by
Napster, 125 illustrate the extraordinary way the patchwork copyright legislation
responds to the current complexities of the Internet. Although Napster may be
extending the metaphor to make it sound rational and reasonable, the definition and

124
Aakanksha Kumar, Internet Intermediary (ISP) Liability for Contributory Copyright Infringement in USA and
India: Lack of Uniformity as a Trade Barrier, Journal of Intellectual Property Rights Vol 19, July 2014, pp 272-
281
125
https://core.ac.uk/download/pdf/205213553.pdf

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enforcement of "compulsory" music licensing is one of the most complicated (and
misunderstood) facets of copyright law, and should not, in the authors' view, be
loosely applied to other aspects of the music marketplace. It's also worth noting that
compulsory licensing rules are incredibly strict, requiring, among other items,
advance warning before sale. Failure to provide adequate notice effectively
eliminates the chance of a compulsory license and makes producing and distributing
illegal. And now, Napster is pressing Congress to enforce a sort of "compulsory"
license on record labels for digital downloading, similar to the compulsory licensing
clauses of the copyright legislation that exist to prohibit monopolies of mechanical
licensing of musical works, of digital downloads of sound recordings.

Against this backdrop, in January 2002, for the first time since Napster was shut
down in the summer of 2001 under Judge Patel’s preliminary injunction order, as
affirmed by the 9th Circuit, Napster has introduced a demonstration of a commercial
file-swapping technology, using tracks licensed from independent record labels.
Judge Patel's Napster decision followed a conventional approach to copyright law
and preliminary injunctions, and it was arguably distinct from most copyright and
technology cases. The plaintiffs copyrighted the bulk of the songs and records made
available for free downloading on Napster, and it was apparent that Napster never
requested or received licenses. In internal records and on the record, the Court
consistently emphasized Napster's expertise, purpose, willfulness, and lack of
honesty, as well as the "vast scope" of the violation affecting "millions" of consumers
and the "usurping" impact on record companies' online music markets.

‘The majority of VCR purchasers in Sony did not distribute recorded television
programs, but merely enjoyed them at home,' the Court noted in separating Napster
from the Sony case. A Napster user who downloads a copy of a song to his hard
drive, on the other hand, can make the song available to millions of other people,
even though he later decides to buy the CD. So-called sampling on Napster can
exponentially encourage illegal distribution,' and that "Napster users may retain the
music they download." In ruling that Napster use does not represent "family or home
use in the usual context," the Court also pointed to the "global size" of Napster use.
Napster's reasons for extending "time-shifting" to "space-shifting" and adding "the
Ninth Circuit's claim, in a case concerning an inapplicable law, that space-shifting

142
constitutes non-commercial personal use" were all dismissed by the Court.

2.7.2 MGMvGrokster 126:

In this case, the Court opted to apply the standard test for contributory infringement
and vicarious liability rather than the Sony rule. In this situation, the technology is s
and omewhat different from Sony's. The Court holds that a product seller will be held
responsible for copyright infringement by a third party if they "distribute a gadget with
the object of encouraging its use to infringe copyright, as shown by plain speech or
other affirmative measures taken to promote infringement, going beyond mere
delivery with knowledge of third-party action," as shown by "clear expression or other
affirmative steps taken to foster infringement, going beyond mere distribution with
knowledge of third-party action." According to the Court, it would be "impossible to
enforce rights in the covered job efficiently against all direct infringers," so the only
practical solution is to pursue secondary responsibility against the device's
distributor. Since there was "no proof that Sony had desired to bring about taping in
breach of copyright or taken aggressive action to maximize its revenues from illegal
taping," the Court differs from its previous decision in Sony. When deciding whether
or not the individual was facilitating infringement, the Court looks at motive. Grokster
sought to encourage copyright infringement by soliciting business from former
Napster users, not attempting to restrict infringement by consumers using their apps,
and profiting financially from the selling of advertising, according to the evidence.

2.7.3 Cyber Jurisdiction — the Indian View:

Until 1999, India's cyber authority was almost non-existent. For starters, interstate
conflicts never reach the threshold of private international law in India as a result of
the country's highly unitary government model. As a result, India has seen little
production of private foreign positions. Furthermore, there have been few cases in
Indian courts requiring Indian courts to have authority over a foreign matter However,
when the Internet and e–commerce shrink boundaries and merge regional and tribal
limits on authority, such a jurisprudential growth will become critical in the near
future. There are two situations that need to be considered:

126
545 U.S. 913

143
(a) The manner in which international courts assume control over Internet-related
matters, and
(b) The implications of a foreign court's decree.

The laws to remember when using electronic data interchange (EDI), e-commerce,
electronic fund transfers, electronic currency, copyright, intellectual property rights,
digital signatures, and so on. 127 While the Information Technology Act has
protections for digital signatures, the Evidence Act also needs to be amended to
recognise them. To accept new innovations, changes are also expected in the Indian
Penal Code, 1860, the Evidence Act, 1872, and the Indian Patents Act. Any court
with exclusive authority over the matter is granted jurisdiction under Section 62 of the
Indian Copyright Act, 1957. It also moves on to clarify the courts' jurisdictional
boundaries. The Information Technology Act, once again, allows for extraterritorial
control in cases of cybercrime. Section 74 of the Indian Penal Code states that any
offense involving a machine or computer resource in India can be prosecuted under
Indian law.

2.8 THE FUTURE OF COPYRIGHT

Since the existence of the Internet is still too unclear, there is no correct response to
the issue of copyright's security. Obviously, the decisions we make today will have
an impact on the path it will go. Copyright isn't intended to give its owners complete
ownership of their works; rather, it's a very specific set of rights intended to
encourage innovation in the public interest. 128 A more appealing option would be to
view fair use widely to prevent misuse by noncommercial, nonharmful uses.
Whatever the outcome of copyright disputes, it is clear that other forms of creator
compensation will coexist on the Internet. VSNL, for example, offers "live"
performances in which celebrities enter chat rooms and engage with customers.
Professional assistance is provided by software providers. On the Internet, there are
a plethora of free intellectual works available, all of which clearly state the terms by

127
Priyambada Mishra and Angshuman Dutta, Striking a Balance between Liability of Internet Service Providers
and Protection of Copyright over the Internet: A Need of the Hour, Journal of Intellectual Property Rights Vol
14, July 2009, pp 321-329
128
FarnazSaadat, Mohammed soltanifar, The role of ISP in encouraging customers to use their internet services
in Iran, International journal of business and social science, Vol 5 no 3 march 2014.

144
which they can be reproduced or used. This article, for example, can be written in
any format as long as it is correctly attributed and not distributed for profit. New
forms of compensation can eventually dethrone copyright. Maybe, in the end, public
views of copyright on the Internet would be more important than stringent legislation.
Laws, it is said, are intended to represent rather than regulate public sentiment.
People adhere to laws that they consider to be fair. ‘A societal over-reliance on
barricades rather than conscience would inevitably wither the latter by making
burglary and stealing into a competition, rather than a crime,' wrote John Perry
Barlow in reference to cryptography. The future of copyright in cyberspace can be
better determined by people's common concepts of what is equal and equal.

2.9 LET’S SUM UP

We learned in this chapter that copyright has a direct relationship with cyberspace.
Copyright security on the Internet is fraught with issues. These issues and concerns
must be addressed with caution and patience, taking into account the current
situation in the post-Napster period and beyond.

2.10 FURTHER READING

Barlow J P, The economy of ideas

A & M Records v General Audio Video Cassettes Inc, 948 F Supp 1449,
1456 (C D Cal1996).
James T C, The Internet as a challenge for intellectual property
protection: An Indian perspective, World Intellectual Property
Organization Seminar for Asia and the Pacific Region on the Internet and the
Protection of Intellectual Property Rights

2.11 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What does “Communication to the Public” means and where is it

defined?

145
Home and Communication over the Internet is considered "public communication,"
and it is still a controversial subject. The Indian Copyright Act has a detailed
description of "public correspondence." According to the Act, "communication to the
public" requires "making any work accessible for the public to view, hear, or
otherwise appreciate directly or by any means of exhibition or diffusion other than
issuing copies of that work, regardless of whether any member of the public currently
sees, listens, or otherwise enjoys the work so made available."

2.12 ACTIVITY

Write a detailed note on how copyright has a direct relation to the sphere of cyber
space. (Word count 2000 to 2500)

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Unit 3: PRIVATE INTERNATIONAL
LAW AND INTELLECTUAL
PROPERTY RIGHTS ON THE
3
INTERNET
Unit Structure

3.1 Learning Objectives

3.2 Introduction

3.3 Bilateral rules

3.4 Neutrality of Contract

3.5 Contract on the Internet

3.6 Contractual relationships

3.7 Copyright on off-shore locations

3.8 Meritless intellectual property right holders

3.9 Extra-contractual liability

3.10 IPR, Internet and legal system

3.11 Let’s sum up

3.12 Further reading

3.13 Check your progress: Possible Answers

3.14 Activity

147
3.1 LEARNING OBJECTIVES

In this chapter, we will learn-

The relationship between IPR, Internet, and its related aspects in cyber
governance.
International treaties and conventions with respect to Private international law
Various provisions of treaties and conventions governing the Internet laws.

3.2 INTRODUCTION

The Tools of Private International Law

1) Points of Contact with Any Kind of Contract or Right The status doctrine was the
beginning of private international law. When traders began to migrate to international
markets, the issue of their legal status emerged. Many problems were regulated by
one's personal status. Friedrich Karl von Savigny later introduced a scheme of
contacts, according to which the law of a given country that is the center of gravity of
the is regulated by the law of the State whose policies will be most legitimate
relationship is deemed applicable for eac and h significant type of rights or contracts.
Only the United States continues to fail to use this tool. Finally, national or regional
codification of private international law tends to be the final move, with more than 60
Acts regulating conflicts of law in countries outside Europe and at least 17 Codes on
conflicts. 129
The fusion of Savigny's approach and the codification movement yields a detailed
plan for intellectual property protection on the internet, which will be discussed at the
conclusion of this post. These ideas are a practical implementation of the concept of
the closest possible connection between a given right or contract and national
legislation. The closest relation is not to a state, but to a series of laws that can be
traced back to a specific legislature. 130
The nearest link triggers a series of checks. The first and most important measure
refers to the legal rules controlling the characteristic results, the second to the legal
rules that apply when any harm is currently felt, and the third to the collection of legal

129
EDWARD I SYKES & MICHAEL C PRYLES, AUSTRALIAN PRIVATE INTERNATIONAL LAW 1 (3rd
ed. 1991).
130
PB Carter (1990) 6 BYIL 400, 402.

148
rules that typically apply to the respondent's activities. As can be seen below, those
laws have a simple subsidiarity, but they are all subject to different exceptions.
2) Points of Contact Exceptions by Category The governing principle of the nearest
link, as well as other significant laws, result in at least three exceptions:
a) Where the facts of the case prove that the matter is reasonably beyond the scope
of another legislature, courts may apply a law other than the one deemed valid by
the particular clause.
b) A third country's direct implementation laws can be used where public or private
interests warrant it. Antitrust laws and other long-arm regulations, for example, can
take precedence over the rules that would otherwise apply. 131
c) There are two types of renvoi: remission and propagation. When the lexfori
designates the rule of another state as the relevant law, but the designated law
deems the lexfori to be applicable, there is a remission. When the lexfori declares
another law to be applicable and that law declares the law of a third State to be
applicable, there is a transfer. While the Rome Conventions I and (draft) II prohibit
renvoi, we believe that where certain texts or related ones are not valid, remission or
dissemination can be used intelligently in situations concerning the right to
advertising, libel, and droit moral obligatoire resulting from the Internet.
Consider the example of a well-known actress's name (Isabelle Adjani) being
misappropriated as a domain name. If the argument were to be heard in Switzerland,
the French actress would be able to chose between the law of her place of residence
(Switzerland) if the wrongdoer should have foreseen that the injury would occur
there, and the law of the wrongdoer's ordinary place of residence or place of
business if the wrongdoer could have foreseen that the injury would occur there.
There would be remission if the wrongdoer's country's private foreign law had
referred the case to Swiss law. There would have been transmission if the matter
had been transferred to the statute of the wounded actress's nationality (in our case,
French law). There would be no renvoi if the court decided that both the affected
party's law and the wrongdoer's law pointed to the same practical remedy, as the
WIPO Panel did in the case of Mrs. Adjani, so there would be no clash of laws.

131
Book length studies include: JAMES J FAWCETT & PAUL TORREMANS, INTELLECTUAL
PROPERTY AND PRIVATE INTERNATIONAL LAW (1998);C WADLOW, ENFORCEMENT OF
INTELLECTUAL PROPERTY IN EUROPEAN
AND INTERNATIONAL LAW (1998).

149
If the forum is a country where internet litigation is rare, the renvoi could result in a
law that is more developed on internet issues than the lexfori. If, on the other hand,
the forum's case law is already well-developed, as it happens to be in the United
States, remission provides a clear means to apply the case to well-established
requirements rather than a blank international law. Any approach that favors the
enforcement of an established body of law is conducive to global judicial
harmonization in and of itself.

3.3 BILATERAL RULES

A general observation on the procedures of contemporary private international law

should highlight the bilateralism of dispute resolution rules: regardless of whether
country A or country B is the forum's country, the same test is used to decide
whether the law of country A or country B is relevant. The forum's legislation is not
favored by bilateralism.

3.4 NEUTRALITY OF CONTACTS

The rules of conflicts must remain neutral. They should not systematically lead to the
law affording a higher level of protection for intellectual property rights. However, in
the long run, the current scheme, which is based on the rule of characteristic
efficiency, may lead to a widespread implementation of developing country rules,
since they are the primary producers of protected intangibles, at least as long as
traditional medicine and folklore are not highly protected. 132 This may or may not be
interpreted as implying that a high degree of intellectual property rights boosts a
region's innovation. Is the higher expenditure cost, though, due to the regulatory
system governing intellectual property rights, or is it due to other factors? The
internet may help developing countries assert their own creativity on the internet, or,
as has been seen with the movie industry, globalization may lead to concentration of
power. Macro-economics provide no clear answer. It is therefore important that the
rules on conflicts of law remain neutral.

132
DAVID GODDARD, CONFLICT OF LAWS: JURISDICTION AND FOREIGN JUDGMENTS 4 (1999).

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3.5 CONTACT ON THE INTERNET

Let us take an example. A producer established in country A commissions a poster

from an artist who resides in country B. Since this poster is part of a larger
promotional campaign of 200 other posters, he retains the freedom to change it to
suit the others. However, a computer programmer in country C steals the completed
poster from the artist's computer and posts it on his webpage, which is hosted by a
server in country D, in a revamped format. From there, the poster is downloaded for
a fee in 100 countries (E1 to E100). The criminal law of countries B and C applies to
the electronic theft, but private international law will govern the conflicts concerning
the artist’s droit moral, the interpretation of the commissioning contract, and the
producer’s rights vis-à-vis third parties who have downloaded the poster. This
example illustrates how a simple international case can require examination of three
types of relationships: 133
1) contractual;
2) extra-contractual (arising out of the infringement of intellectual property
rights); and
3) quasi-contractual (for the accounting of profits, if any).

There is no doubt that contractual relationships are the key element in the
application of technical measures to safeguard copyrighted contents on the internet.
The seamless coordination of business operations on the internet is enabled by a
network of interconnected contractual arrangements, allowing other companies or
users to completely profit from the e-facilities. Liability for tortious conduct and the
ensuing accounting for profits are nonetheless necessary. These three aspects shall
now be considered from conflicts of law perspective.

3.6 CONTRACTUAL RELATIONSHIPS

1) General Rule
The legislation applicable to a deal entered into on the internet or for the use of an
intellectual property right on the internet, according to Article 4, paragraph 2 of the

133
See further Graeme W Austin, Social Policy Choices And Choice Of Law For Copyright In Cyberspace,
__Oregon Law Rev. __(2001) (forthcoming).

151
Rome Convention of 1980, is the law of the country where the supplier of the
characteristic performance has his domicile or establishment. This rule applies to all
licensing or transfer of intellectual property rights. The practice tends to mention
"transfer of rights" where the word "licensing" would be more technically correct. 134
Therefore, in determining the applicable law, no distinction should be made between
an outright transfer and a sheer license. Furthermore, the so-called "license"
allowing the use of software or any intangible embodied in a CDRom or other
physical copy is often ancillary to the selling of the copy and, as such, should be
subject to the same laws as the sale.
In the absence of a separate option of law by the parties, both the selling and the
license of intangibles will be subject to the licensor's or seller's regulation. Consumer
rights legislation has been set aside. There are still several other drawbacks to
consider.
2) Transnational Law
There is no conflict of laws where the laws potentially applied in a particular situation
do not differ on the points in question. This is most often the case where a higher
authority has mandated some level of harmonization, as is the case in Europe. Non-
interference of State law with practice, on the other hand, will result in harmonization.

Licence Law

This second situation arises on the internet in the absence of applicable State law.
Furthermore, as merchants usually resort to arbitration rather than to State courts, it
is possible for a transnational law to emerge. The basis of this law is hotly disputed
between supporters of the lexmercatoria and sovereignists. Whatever the merits of
the lexmercatoria, licensing practices are identical worldwide and most municipal
laws are silent on details. Thus, the ideal conditions are met for a transnational body
of law to come into existence. Here are two examples:

1) Although still uncertain two decades ago, the right of an exclusive licensee to
sue for infringement is now recognized in most jurisdictions. Canada also

134
See generally, J FAWCETT (ed.), DECLINGING JURISDICTION IN PRIVATE INTERNATIONAL
LAW: REPORTS TO THE XVITH CONGRESS OF THE INTERNATIONAL ACADEMY OF
COMPARATIVE LAW: ATHENS, AUGUST 1994, (1995).

152
 permits the holder of a non-exclusive license to sue the infringer, but this
continues to be a pioneering step that has yet to catch on.

2) The truly exclusive licensee's privileged status is linked to his duty to use the
product, patent, concept, model, or patented art. As a result, the licensor who
promises not to use the technology will almost certainly be compensated.
However, in the case of "sole licensees" (who must consider competition from
the licensor but no other licensee) or "semi-exclusive licensees," transnational
legislation is less simple (who enjoy the status of an exclusive licensee in some
countries or for some applications of intellectual property rights, and the status of
a sole licensee in other areas). French, German, and Swiss law, in our opinion,
have all agreed on the universally recognized doctrine for genuinely exclusive
licensees. However, while French law acknowledges the need to use intellectual
property rights even for non-exclusive licenses, this remedy cannot be
considered part of the transnational licensing law. On the internet, no conflict of
law exists because alternatives are transnational.

Competition Law

The internet is also subject to similar or identical solutions in the field of competition
law. When the time came to develop a world-wide system for the assignment of
domain names, a common understanding between the U.S. and European
authorities on antitrust issues helped persuade the U.S. to surrender its monopoly in
this regard (as well as the initiation of proceedings by the E.U. competition
authorities, which were later summarily dismissed). The next reform of the European
block exemption regulations can also take into account the current state of antitrust
and licensing law in the United States. 135
Consumer Protection

In the United States, Professor Raymond Nimmer’s efforts to compile the licensing
law in Article 2B of the Uniform Commercial Code finally led to a Model Act to

135
Andrew F. Christie, ‘Private International Law Issues in Online Intellectual Property Infringement Disputes
with Cross-Border Elements: An Analysis of National Approaches’ (World Intellectual Property Organization,
2015)

153
Protect Consumers (Uniform Computer Information Transactions Act, hereafter
UCITA). Its adoption is pending before several State legislatures. As the sole
restatement of modern licensing law, the UCITA will be an inspirational model in
many countries.
The UCITA regulations on conflicts of law are symptomatic in that they defend
customers, but with a caveat: the parties should select the relevant law. However,
their choice will not be enforced in consumer contracts if it modifies mandatory
provisions of the applicable law under the UCITA. To a certain extent, European
laws also purport to help consumers by having the mandatory provisions of their own
laws apply. It's odd because the consumer's home country's law is assumed to be
more favorable than the seller's home country's law – which, logically, cannot be
valid in both situations when sellers and vendors are more or less involved in the
same developing countries. Nonetheless, the rationale for applying the consumer’s
law is to help avoid any surprise to him or her. As a result, it is preferable to allow the
consumer's country's law to prevail in order to promote the advancement of e-
commerce, especially in those European countries where there is a reluctance to
engage in large-scale e-commerce. 136
The legal condition is similar to ordinary distance trading where an order is made on
the internet but the items are shipped later by courier or postal. When downloading
intangibles, however, it is important to differentiate between material that is not
covered by intellectual property rights and content that is. The buyer can be shielded
by his or her own statute where no intellectual property rights are involved. Where
copyright, architecture or model legislation, or a sui generis privilege on data
extraction applies, the licensor's law should apply rather than the consumer's law,
since the clauses of the law relating to licensing deals are a lexspecialis in terms of
consumer protection laws, which are best suited to licensing transactions. The text of
Article 5 (1) of the Rome Convention may also be used to make a more formal
argument: permits are not arrangements for the supply of goods or services.
Finally, licensing necessitates a balancing act since the greater a country's legal
security is, the more relevant it becomes to still extend the exceptions offered by that
country's rule. For example, Anglo-American copyright law provides a low threshold
for originality but has a broad exemption from protection for what is known as "fair

136
Graeme B. Dinwoodie, ‘Developing a Private International Intellectual Property Law: The Demise of
Territoriality?’ (2009). Oxford Legal Studies Research Paper No. 52/2009.

154
use" in the United States or "fair dealing" in the United Kingdom. If the licensor is
located in the United States, a European user forum can apply the fair use exception
even if his or her national legislation does not permit it, and even if the fair use
exclusion is more of a substantive copyright law provision than a contract law
provision.
Exceptional Application of the Licensee's Law

But for consumer rights or antitrust law purposes, the proposition mentioned above
applies to the licensor's law being relevant. It is important to remember that other
extraordinary situations can necessitate the implementation of the licensee's
country's rule. In this respect, three examples are worth noting.

3.7 COPYRIGHT IN OFF-SHORE LOCATIONS

When a supplier of intangibles on the internet is an efirm with no particular

relationship to the jurisdiction of any State, the general provision for diverging
connections or the inspection of the nearest communication could contribute to the
implementation of the licensee's statute. Any businesses in Panama or the
Netherlands Antilles, for example, may be considered to be in this group. It is
suspected that such companies would unlawfully misuse the intellectual property of
serious right holders and distribute it around the internet. Their motivation may be
direct remuneration from internet users, payments from advertisement sales, or
income provided from the sheer accumulation of checked e-mail addresses. 137 In
and such a case, the courts will break from the fundamental tenet that the relevant
statute is determined by the licensor's characteristic results. In the 160 member
states of the Paris Union, the 147 member states of the Berne Union, and the 134
countries that have signed the TRIPS Agreement, intellectual property theft is
prohibited. It is fair to conclude that a deal allowing for the sale of such pirated
intangibles would be declared null and invalid in these countries, and contra bonos
mores in the remaining countries. As a result, an illegal or unethical duty cannot be a
characteristic obligation under the Rome Convention.

137
ICT Development Index (2017)

155
If the implementation of the nearest relation test may not be accepted for this first
explanation, a second reason could seem to be more in line with legal and economic
thought.

3.8 MERITLESS INTELLECTUAL PROPERTY RIGHT

HOLDERS

If the licensor does not obtain the intellectual property right through its own
purchases, actions, or ingenuity, or at a fair price, or through inheritance or
acquisition, the licensor has achieved nothing characteristic until the licensing
agreement is established. Intellectual property regulations aim to safeguard
intellectual assets. Piracy is not regarded as an expenditure worthy of security.
Furthermore, an e-business that thrives on the illicit manipulation of others'
intangibles is unlikely to have funds that could be seized to pay its creditors in the
event of a default. The underlying reason for the theory of characteristic performance
is the connection between the country of the principal place of operation and the
country in which bankruptcy proceedings or disciplinary actions will be instituted if
the debtor of the characteristic performance may not discharge himself or herself of
his or her obligations.
The foundation of the structure is the consistency of the law governing contract
efficiency and the law governing compliance procedures. When the efirm, on the
other hand, has no tangible properties, the off-shore climate would be ignored in
favour of the licensee's legal environment.

3.9 EXTRA-CONTRACTUAL LIABILITY

1) Scope of the Extra-Contractual Liability

Intellectual property rights abuses occur often where there is no valid contractual
arrangement between the parties. It's possible where the parties claim to have
signed a deal, but the contract isn't binding unless a form condition isn't fulfilled, for
example. Then, under Article 8 of the Rome Convention, the rule that would have

156
held if the contract had been legitimate is declared applicable. However, we will only
discuss violating acts and unfair competition in the following sections. 138
In the one side, there is a difference to be made between patent law and copyright,
trade name, and trademark law. Since patent law is so closely tied to national
economic policy, it is far more territorial. As a result, a list of contacts with each of
the major intellectual property groups would be proposed. However, writers have
previously gone into more detail on copyright and legal disputes. As a result, we'll
begin our investigation with copyright and neighboring rights.
2) Copyright and Neighboring Rights
a) Characterization of the country of "origin"
The definition of "country of birth" is central to the Berne Convention. This point of
touch is responsible for determining whether a job is covered in other Member States
(alternatively the nationality of the author). It also aids in the distinction between
"domestic" and "international" works, which are works of the same origin as the
forum and do not benefit from the Berne minimum requirements of security.
Finally, it is important for the reciprocity provision that remains in the Convention,
such as the period of defense and works of applied arts (but not for a "droit de
suite"). The "country of origin," in our opinion, is a convention-specific term that
cannot be twisted into a new and distinct concept for the Berne Convention's
purposes. When it comes to conflicts of law, on the other hand, the criteria may be
voluntarily selected or construed by States because the The ordinary residence or
domicile of a citizen is a more important touch than his or her nationality, according
to modern codifications of private international law. It's just reasonable that the
author's address is the primary point of touch regarding copyright issues, as well as
perhaps deciding whether or not there is a protectible subject matter.
b) Place of acting
Infringement of intellectual property rights faces the same challenges in establishing
a conflict of law contact as more conventional tortious behaviors. When the breach
and the resultant destruction happen on the same piece of land, the rule of that state
will apply. In the internet, though, it is more likely that the breach will occur in one
place but the harm will occur elsewhere. As a result, some scholars designate the
State in which the most recent infringement occurred as their primary touch. This

138
Lilian Edwards, ‘The Role of Internet Intermediaries in Advancing Public Policy Objectives Forging
Partnerships for Advancing Policy Objectives for the Internet Economy, Part II’ (OECD, 2011)

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confrontation law is widely agreed for tortious actions to some degree. Most
European regulation, on the other hand, leaves the option of the rule of the state
where the harm occurs free. In this case, the Swiss private international law
codification is a stronger model. Article 110 (2) of the Swiss Federal Law on Private
International Law (“PIL”) retains the concept of territoriality in the context of
intellectual property, with the caveat that the parties can opt for the lexfori ex post
facto.
However, we have found that the territoriality principle is not useless on the internet.
As a result, we can turn to the plethora of rules governing personality defense, unfair
competition, and wrongful behavior in general, particularly because transboundary
data flows are governed by Art.

3.10 IPR, INTERNET AND LEGAL SYSTEM

In this regard, the points of contact that we propose for intellectual property rights on
the internet lead to one legal system being applicable under three different
viewpoints:
(1) Time: the person or legal entity entitled to use the intellectual property rights
profits from their use but at the same time, incurs contractual or legal liability for its
products or services (such as the strict liability standards of U.S. laws or the liability
for risks of Article 1382 of the French Civil Code). 139
(2) Geographical: The location where a dynamic act of wrongdoing causes financial
damage is the victim's financial centre of gravity, or its principal business institution.
This is also where the company's intellectual property rights are registered. Since
intellectual property rights, unlike chattels, are not found in different jurisdictions, the
loss cannot be located anywhere.
(3) Civil actions: A single regulatory scheme will extend to all damages claims (the
success of which is often questionable due to the difficulties of proving missed
profits) and benefit accounting under our plan (which an audit may more easily
prove).

139
WIPO, ‘Overview of WIPO Panel Views on Selected UDRP Questions. WIPO Jurisprudential Overview 3.0’
(3rd edn, 2017), para. 4.2

158
3.11 LET’S SUM UP

In this chapter, we have learned how various international treaties and conventions
are regulating Private international law. Additionally, we have understood various
related concepts like extra contractual liability, neighbouring right etc.

3.12FURTHER READING

STROWEL & J.P. TRIAILLE, LE DROIT D’AUTEUR, DU LOGICIEL AU

MULTIMÉDIA 386 (Brussels 1997); Lucas, supra note 23 at n° 96-97; Dutoit,
supra note at 151-152.
FRANÇOIS DESSEMONTET, INTERNET, LA PROPRIÉTÉ
INTELLECTUELLE ET LE DROIT INTERNATIONAL PRIVÉ, Internet - Which
Court Decides? Which Law Applies? 47-64 (1998)
LUCAS & H.J. LUCAS, PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE n° 976-
980 (1994).
François Dessemontet, L'enrichissementillégitimedans la
propriétéintellectuelle, in RECHT UND WIRTSCHAFT HEUTE, FESTGABE
FÜR PROFESSOR D. MAX KUMMER 191-214 (1980).

3.13 CHECK YOUR PROGRESS:POSSIBLE ANSWERS

1. Define “country of origin”.

The definition of "country of origin" is central to the Berne Convention. This point of
touch is responsible for determining whether a job is covered in other Member
States (alternatively the nationality of the author). It also aids in the distinction
between "domestic" and "international" works, which are works of the same origin
as the forum and do not benefit from the Berne minimum requirements of security.

3.14 ACTIVITY

Explain Extra-contract liability in light of Private International law and Internet. (Word
count 2000-2500)

159
Unit 4: INTELLECTUAL
PROPERTY, CYBERSPACE AND 4
INTERNATIONAL LAW
Unit Structure
4.1 Learning Objectives

4.2 Introduction

4.3 International conventions and territoriality

4.4 Territoriality on Intellectual property Right

4.5 Territoriality and National policy

4.6 Concluding remark

4.7 Let’s sum up

4.8 Further reading

4.9 Check your progress: Possible Answers

4.10 Activity

160
4.1 LEARNING OBJECTIVE

In this chapter, we will learn-

The relationship between IPR, cyberspace, and its related aspects in cyber
governance under International treaties.
International treaties and conventions with respect to IPR.
Various provisions of treaties and conventions governing the Internet laws
and IPR.

4.2INTRODUCTION

The conflict of laws regulations was designed to resolve disagreements within

territorial laws, also known as municipal laws. Since there are no independent
national jurisdictions in cyberspace, territoriality is still present in the judicial system
(with a few exceptions, such as the Panels adjudicating domain name disputes
under the Internet Corporation for Assigned Names and Numbers ("ICANN") Policy
or the World Trade Organization ("WTO") Dispute Resolution Body). As a result,
conflict of authority remains a major concern in most fields of intellectual property.
This has spurred calls for the establishment of a single European patent court.
Beyond jurisdictional issues, however, harmonization of intellectual property law is
not currently being pursued. The Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) represents just a sliver of
agreement, and the World Intellectual Property Organization (WIPO) Treaties of
19964 only include copyright and adjacent rights. Many geographical differences
also exist in trademark and trade name law, design law, copyright law, licensing law,
unfair market law, and trade secrets law, as well as in the fields of broadcasting and
publicity rights, to name only a few of the most important areas on the internet. 140
As a result, we believe it is beyond time for a restatement of the dispute principles in
intellectual property law. The Convention on the Law Applicable to Extracontractual
Obligations may have accelerated the codification process in Europe, but it was
squandered. As a result, another permanent body, such as the Hague Conference
on Private International Law, will have to take on the responsibility. Since, as will be

140
John M. Mrsich, Meeka Jun, "TermsYou Need to Know: Search Engines.": Description of how search
engines work; terms used; and distinction among search engines, search directories, and search managers.

161
discussed further below, the current network of international conventions does not
include a full collection of tools for settling such disputes, harmonization of conflict of
laws rules is needed. The second section of this essay focuses on the internet's
private international law in the area of intellectual property.
Cyberspace cannot be spoken of as a set of national jurisdictions. However, the
inherently territorial existence of intellectual property rights precludes this. This
chapter does not explore international laws that control cyberspace around the world
since it focuses on intellectual property (for example, the domain name regulation
system, the allocation system for internet protocol addresses). It also doesn't take
into account how national and foreign legislation work in regards to cyberspace. 141

4.3 INTERNATIONAL CONVENTIONS AND

TERRITORIALITY

A. Scope of International Conventions on Intellectual Property

1) Areas Regulated by International Conventions
Patents, trademarks and geographic designations, trade names, designs and
models, semi-conductor chips, copyright, neighbouring rights, plant variety, and
trade secrets are all covered by existing treaties. Furthermore, Member States are
required to ensure effective protection against unfair competition under the Paris
Convention for the Protection of Industrial Property.
2) Minimum Rights
The multilateral Conventions provide intellectual property right holders with a
minimum level of protection. Regardless of national legislation, all Member States
can claim this minimum level of protection.
3) National Treatment
Discrimination against nationals of other Member States, as well as expatriates and
refugees, is prohibited. As a result, any intellectual property right holder who is
eligible to benefit from the Convention will be afforded the same level of protection in
all Member States as a national of those countries. Most legal conflicts are

141
Mark Sableman, Link Law: The Emerging Law of Internet Hyperlinks. The most recent and thorough
examination of legal implications of hyperlink use on the Internet.A long but comprehensive look at the many
legal arguments that can be made for and against users of hyperlinks.

162
suppressed by the equal protection of nationals and foreigners, combined with the
minimum rights. When a national law differs from international standards, however,
private international law issues arise. Although this deviation is justiciable before the
WTO Dispute Resolution Body under the TRIPS Agreement, no other international
mechanisms exist to ensure that Member States' legislation adheres to the
international instruments' minimum rights. National governments have reacted in a
variety of ways to the rapid advancement in technology. Conflicts of laws are
becoming more common, owing to the fact that the major conventions have not been
updated in the last three decades. In view of the Berne Convention, the issue of
whether the framework of international treaties contains a set of guidelines for
settling legal disputes will be discussed.
The other major intellectual property treaties, on the other hand, have the same
effect on international law. Article 5 (2) of the Berne Convention guarantees the
independence of the privileges granted to writers by national legislation. On first
glance, this clause may cause one to conclude that the Convention establishes a
dispute law. However, a thorough examination shows that Article 5(2) only prohibits
discrimination against immigrants based on technicalities in their home country's
rule. National copyright rules are "alone," which ensures that no deprivation of
intellectual property rights under domestic legislation can be recognised by other
Member States. That also ensures that no centralized infringement on the
authenticity of copyrights for a certain work or subject matter is possible.
Furthermore, contrary to popular belief in the nineteenth century, no reciprocity
obligations can be enforced on immigrants requesting immunity from local courts.
Even the Berne Convention, however, was unable to abolish all statutory reciprocity
provisions in some contentious regions, such as copyright length, the "droit de suite"
(right to an interest in resales), and the defense of applied arts.

4.4TERRITORIALITY OF INTELLECTUAL PROPERTY LAWS

First Sale Doctrine between Nations

Global obstacles to the importation of brand papers, proprietary books, and licensed
materials are likely to be removed by the internet. International exhaustion is the e-
commerce norm on the internet; anything accessed from a device is only subject to
international exhaustion laws. However, for goods purchased on the internet and

163
sent by courier or postal, protection of local intellectual property rights is limited. We
are seeing de facto international fatigue in motion. National courts, we believe, would
be unable to implement a national exhaustion scheme for rights in conventional
delivery systems in the long term, while e-commerce is focused on international
exhaustion. 142
Japan, Switzerland (except for patents), and the United States (at least for
reimportation) are among the first countries to recognize international fatigue. The
territorial solution to conflicts of law is inadequate in this case since the forum would
define the first marketing abroad: was it rendered legally and with the consent of the
intellectual property right holder? As a result, there is a strong extraterritorial bearing
on the forum's legislation in operation (lexfori). The lexfori rarely has anything to do
with the reality of the first marketing, with the exception of a few reimportation
events. As a result, the court would often look at the copyright law (lexcontractus)
that enabled the first merchant to bring the goods on the market to decide if the first
sale was legal and done with the consent of the intellectual property right holder.
Surprisingly, the legislation of the selling nation would be disregarded if it does not
have enough protection for the issues at hand, such as drug patents. This approach
is also possible outside of the TRIPS Agreement's signatories, since it is a matter of
critical interest for national health programs. The "territoriality" of intellectual property
rights does not tend to be the guiding concept in any case (application ofcontractus).

4.5 TERRITORIALITY AND NATIONAL POLICIES

The jurisdiction of Member States over their public health, economic growth, and
cultural policies which cause national courts to exclusively extend the lexfori to
intellectual property rights that are considered to play an important role in such
policies, notwithstanding the fact that the international Conventions do not enforce
absolute territoriality. It's worth noting that the Swiss Federal Tribunal would not
recognize international fatigue in the field of patent law. 143 The reason for this is the
economic consideration that while international fatigue prevails, a fair return on

142
Lundstedt, L. (2016). Territoriality in Intellectual Property Law ative study of the interpretation
and operation of the territoriality principle in the resolution of transborder intellectual property infringement
disputes with respect to international civil jurisdiction, applicable law and the territorial scope of application of
substantive intellectual property law in the European Union and United States (PhD dissertation, Department of
Law, Stockholm University). Retrieved from http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-133470
143
https://www.espon.eu/sites/default/files/attachments/ESPON_Policy_Brief_Territorial_dimension_of_future_
policies.pdf

164
investment for patent holders is not assured because certain countries would not
enable patent owners to set reasonably high prices.
In the United States, Professor William Patry has argued that, under Article I (8) of
the United States Constitution, any work must meet the Copyright Act's originality
requirements. Judge Kaplan of the Southern District of New York, on the other hand,
and has responded that the acknowledgment of works covered under the lexoriginis
stems from the United States Congress' Treaty Power. In addition, the United States
Congress has ratified copyright conventions that provide for any connection to the
country of origin.
There is one other point to remember that has yet to be discussed in the United
States. The United States Congress has since adopted international human rights
declarations, most specifically the International Covenant on Economic, Social, and
Cultural Rights, in compliance with its Treaty Power. Intellectual property is protected
under Article 15 paragraph 1 of this international treaty. The United States and other
treaty partners cannot use their local rules to exclude themselves from their
diplomatic obligations to uphold the treaty. Despite not being entitled to the value of
the Berne Convention, the French courts correctly interpreted the Universal
Declaration of Human Rights to allow Charlie Chaplin to seek immunity in France for
his cinematographic works. A federal solution to intellectual property rights is ruled
out by the prevalence of international commitments under the universal human rights
doctrine. These rights are no longer the driving force behind national economic and
cultural agendas. As a result, they are no longer subject to the whims of state
governments. This also makes the United States' method of settling legal disputes by
choosing the rule of the nation whose legislation seems to be the most relevant
obsolete. Furthermore, as we can see, this approach is incompatible with the most
current doctrine on conflict of laws. 144

4.6CONCLUDING REMARK
The real issue for intellectual property rights holders in cyberspace is the protection
of their rights. Although intellectual property rights are still territorial in nature,
cyberspace must exist globally, and intellectual property security has been
standardised by international treaties, especially the TRIPS Agreement. The

144
ESPON. 2017a. “European Territorial Review: Territorial Cooperation for the Future of Europe.”
https://www.espon.eu/european-territorial-review.

165
territoriality theory that defines intellectual property rights has also been loosened as
a result of this standardization. The issue of territoriality of intellectual property rights
will have to be addressed as part of any international cyberspace legislation. Any
effort to regulate cyberspace and its relationship with intellectual property rights on
an international level will pose the same legal and political challenges as any other
international convention, as well as the need to create an international organization
to track and police such a convention. However, in such a situation, international law
may be used to control cyber threats and cyber war.
Outlining legal recommendations for internet infringements on intellectual property
rights is just the first step. In certain cases, a straightforward test would not yield
accurate results. When two or more experiments are used in parallel, the nearest
relation is always discovered.
The reader should look back at previous publications and figure out why our series of
tests was chosen. These assessments, according to some scholars, are not strictly
dependent on the interpretation of the law of the receiving country. The policy is to
favor a workable offer for goods and services under private law, as well as the use of
intellectual property rights that can be monitored.
The enforcement of the legislation of the country of reception in a subsidiary capacity
is not entirely ruled out. It can be used where a separate communication designates
the same rule, for example, because the harm is obviously felt there and only there,
or when it is a country shared by all sides. Where there is no worldwide distribution
over a "Napster"-type relay, or uploading over a cell phone or other mobile devices in
a different region, the legislation of the uploading country can also provide a very
subsidiary examination. Finally, in extreme cases, the defendant's rule can be
applied as the law of last resort.
In either test, the forum's public policy, such as any overreaching international
policies, such as in antitrust zones, must be maintained. In the years to come,
freedom of access, freedom of study, and freedom of speech, as well as droit moral
and the security of intangible business properties, would generate enough tensions
for dispute resolution laws to flourish.

4.7 LET’S SUM UP

In this chapter, we have learned how various international treaties and conventions

166
are regulating International law on IPR and cyberspace. Additionally, we have
understood various related concepts like minimum right, National treatment etc.
Besides, we have also analysed the territorial and extraterritorial policy formation
along with its implication on cyberspace and in protection of rights under IPR.

4.8 FURTHER READING

Rahmatian, Andreas (2008), ‘Trade Marks and Human Rights’, in: P.

Torremans (ed.), Intellectual Property and Human Rights, Alphen aan den
Rijn: Kluwer, pp. 335- 357
Rahmatian, Andreas (2009), ‘Dealing with rights in copyright-protected works:
assignments and licences’, in: E. Derclaye, Research Handbook on the
Future of EU Copyright, Cheltenham: Edward Elgar, pp. 286-316
Rahmatian, Andreas (2011), Copyright and Creativity. The Making of Property
Rights in Creative Works, Cheltenham: Edward Elgar
Rahmatian, Andreas (2013), ‘Originality in UK Copyright Law: The Old “Skill
and Labour” Doctrine Under Pressure’, 44 International Review of Intellectual
Property and Competition Law, 4-34
Rosati, Eleonora (2013), ‘Towards an EU-wide Copyright? (Judicial) pride and
(legislative) prejudice’, Intellectual Property Quarterly, 1, 47-68 Rousseau,
Jean-Jacques (1968), The Social Contract, Maurice Cranston (ed.), London:
Penguin
Taubman, A. (2009), ‘International Governance and the Internet’, in: L.
Edwards and Ch. Waelde (eds), Law and the Internet, 3rd ed, Oxford and
Portland, Oregon: Hart Publishing, pp. 3-44
Torremans, Paul (2005), ‘Authorship, ownership of right and works created by
employees: which law applies?’, 27(6) European Intellectual Property Review,
220- 224
Younes, Anan S. (2012), ‘Trade Marks and Domain Names: Exploring the
Inadequacy of Existing Protection for the Economic Value of Trade Marks’,
34(12), European Intellectual Property Review, 847-852.

4.9 CHECK YOUR PROGRESS:POSSIBLE ANSWERS

167
1. What is minimum right?

The multilateral Conventions provide intellectual property right holders with a basic
standard of security. Regardless of national law, all Member States will invoke this
basic level of security.
2. What are the areas Regulated by International Conventions?
Patents, trademarks and geographic designations, brand names, designs and
models, semi-conductor chips, copyright, neighbouring rights, plant diversity, and
trade secrets are all covered under current treaties. Furthermore, Member States
are expected to maintain adequate safeguards against unfair competition under the
Paris Convention for the Protection of Industrial Property.

4.10 ACTIVITY

Explain Territoriality and National Policieslight of Private International law and cyber
space. (Word count 2000-2500)

168