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Writer's pictureRitik Agrawal
Nov 6, 202310 min read

THE FUTURE OF INTELLECTUAL PROPERTY RIGHTS IN THE AGE OF CYBER CRIME OPPORTUNITIES AND CHALLENGES

Updated: Jan 16

Author: Pawanpreet Brar

Guru Nanak Dev University

INTRODUCTION

The term "intellectual property rights" (IPR) refers to the legal framework established to safeguard the creations of artists, authors, photographers, musicians, and other cultural producers in a variety of sectors. They protect authors' interests by thwarting unauthorized duplication and reuse of their works. Laws protecting intellectual property (IPR) extend to both physical and digital works and offer redress when they are violated.

Copyright and patent holders have benefited greatly from the rise of technology and the widespread availability of the internet, which has allowed them to broaden their customer base and generate more revenue (Cyber Crime - a Hindrance in Digital World, n.d.). However, with this advancement in cyber technology comes a plethora of new risks, the most pressing of which is the infringement of intellectual property rights. Laws pertaining to intellectual property and the internet are inextricably linked and must be treated as one. The safety of intellectual property (IP) depends on the security of online material.

Cybercrimes, which include but are not limited to cyberstalking, fraud, cyberbullying, phishing, and spamming, are constantly developing and expanding. They also include the illegal use of hyperlinks, framing, meta-tagging, and other techniques to infringe on intellectual property rights like copyright, trademark, trade secret, audios, videos, and service marks.

For the creative industry as a whole to thrive and expand into the future, IP protection in the digital sphere is essential. Digital content creators and businesses can lose a lot of money if their work is copied or distributed without permission. Therefore, it is crucial to uphold intellectual property laws and regulations and safeguard online content.

So, there have been many positive outcomes from the development of cyber technology, but it has also spawned serious problems. To ensure that creators' and enterprises' legal rights are not jeopardized in the digital realm, IP protection is essential. Legal protections for intellectual property (IPR) and cyberspace (Cyber) must go hand in hand to deter and punish those who violate these rights.


INTELLECTUAL PROPERTY (IP)

The term "intellectual property" (IP) refers to the creations of human intelligence. It alludes to mental works that are capable of ownership and legal protection. It is forbidden for others to replicate or reuse an inventive design—or any other type of distinctive work—without the owner's consent since IP grants the owner exclusive rights. The rights of those involved in invention, music, writing, and other kinds of creative expression are safeguarded by this area of law in commercial transactions.

Intellectual property can be protected using a variety of instruments, including patents, trademarks, geographical indications, integrated circuit layout designs, trade secrets, copyrights, and industrial designs. While trademarks protect brand names and logos, patents only protect inventions. While layout designs of integrated circuits protect the configuration of electronic circuits, geographic indications are used to protect products coming from a particular area. Contrary to copyrights, which are intended to preserve original works of authorship like books, music, and artwork, trade secrets are used to safeguard confidential information. Industrial designs safeguard a product's decorative and aesthetically pleasing features.

The promotion of innovation and creativity is greatly aided by intellectual property. It promotes the creation of innovative concepts and products, which can contribute to economic progress and social welfare, by giving creators and innovators legal protection. The numerous safeguards provided by intellectual property laws make certain that authors and inventors get the credit and compensation they merit for their work. (Geeks for Geeks. (2023).


CYBERSPACE

Cyberspace is a widespread digital realm where all computers are linked together via networks for easy and instantaneous interaction. Cyberspace is now a vibrant platform for economic activity thanks to the rapid development of technology that has made it available to everyone. However, IP rights have come under intense stress because of this trend. Infringement of copyrights and trademarks of numerous corporations and organizations is now included in the category of "cybercrime," which previously only included fraud, cyberbullying, and identity theft. Since the security of digital content is paramount, there is an inherent relationship between intellectual property rights and cyber laws.

Using someone else's work for financial gain without their knowledge or consent is a blatant invasion of privacy that is safeguarded by intellectual property rights (IPR) online. The infringement of intellectual property rights in cyberspace is illegal on multiple fronts. There are a number of legal options for dealing with IPR issues. (Pollitt, M.M. (1998)


ISSUES FACED IN PROTECTING INTELLECTUAL PROPERTY IN CYBER LAW

Copyright Infringement:

Any published artistic, literary, dramatic, or scientific work is entitled to copyright protection, which is a legal right granted to the owner. It gives the owner the ability to benefit from the work and prevent others from utilizing it without their consent. When someone makes use of a copyrighted work without the owner's consent or authority, this is known as copyright infringement. This could entail manufacturing and selling illegal copies of software, purchasing such copies without a license, or forcibly copying material from websites or blogs.

Linking: Linking occurs when a piece of text or an image on a page may be clicked on to take the user directly to another website. While it's helpful to users, it poses a risk to website owners' rights and interests. Users may become confused and the site's owner may lose revenue if they think all linked sites are managed by the same company (Li & Liu, 2021).

Deep linking to a website without authorization was found to be a copyright infringement in the UK case Shetland Times, Ltd. v. Jonathan Wills and Another (Pollitt, M.M. (1998), and an injunction was imposed against the offending party. Because of the proliferation of digital material, it is now much simpler for hackers to circumvent copyright protections through methods like linking, in-linking, and framing.

Since there are currently no national or international regulations concerning deep linking, it is extremely difficult to control. Due to legal ambiguity, cybercriminals have an edge when they violate copyrights. To keep online resources and businesses running smoothly, it's important to strike a balance between the rights of the copyright owner and the free availability of information. (Nugroho & Chandrawulan, 2022)

Some guidelines for copyright infringement are provided by the Indian Copyright Act of 1957, but identifying exactly when a copyrighted work was reproduced remains ambiguous. Whether an infringement occurs when a deep link is initially created or when a user initially views the link without permission is not apparent.

Another difficulty arises from in-linking, in which the ultimate user downloads photos from multiple websites without necessarily realizing it. When someone creates an inline link to another website, they are facilitating the theft of that website's intellectual property. The difficulty in enforcing copyright laws arises from the fact that the end user may have committed no wrongdoing and had no prior knowledge of the infringement.

In order to overcome these difficulties, it is crucial to have uniform national and international regulations and standards for outbound and incoming links, as well as for framing. To strike a fair balance, rules should take into account the interests of both the copyright holder and the public's right to access publicly held material without charge.

Therefore, the legal framework for regulating deep linking, in-linking, and framing is unclear, and linking poses a danger to copyright ownership and rights over invention. The interests of website owners and the efficient operation of online resources require the establishment of clear regulations and standards that strike a balance between the rights of copyright owners and the free availability of information. (Freeze, 2021)

Framing: Another difficulty that prompts legal discussion and disagreement is framing in relation to how Section 14 of the Copyrights Act, 1957, defines derivation and modification. Giving consumers a way to access copyrighted content that has been downloaded from a website and presented in a frame on the user's browser is the practice of framing. The framer just offers a way to access the copyrighted content; they do not duplicate, transmit, or disseminate it.

The issue is whether fusing the copyrighted material downloaded from a website with other material to produce a new work qualifies as adaptation or interpretation in legalese. The framer may claim that because they are only facilitating access to the information and not actually copying it, they are not violating the rights of the copyright owner. The framed content is being merged with other elements to produce a new work; thus, the copyright owner may counter that this amounts to adaptation or interpretation.

Whether framing constitutes copyright infringement depends on how the Copyrights Act, 1957, interprets the terms "derivation" and "adaptation." Even if they do not reproduce or distribute the copyrighted work, the act of framing may be considered an adaptation or interpretation, in which case the offender may be held accountable for copyright infringement. This makes it difficult to strike a balance between the rights of the owner of the copyright and the free availability of information.

At both the national and international levels, there must be clear framework regulations and legislation to address this issue. To ensure a balanced approach, rules should take into account both the rights of the copyright owner and the accessibility of information for free. The recommendations should be explicit about what the law considers to be adaptation or interpretation and how it relates to framing.

The interpretation of derivation and adaptation under Section 14 of the Copyrights Act, 1957 is thus discussed, and framing generates legal concerns. To strike a balance between the rights of the copyright owner and the unrestricted dissemination of information, clear regulations and legislation on framing are required. The recommendations should be explicit about what the law considers to be adaptation or interpretation and how it relates to framing. Ashwin. (2022, September 1).

Software Piracy: The illegal duplication of computer programs that are covered by the Copyright Act of 1957 is known as software piracy. Soft- and hard-copy software piracy, as well as software counterfeiting and rental, are all examples of software piracy.

Soft lifting happens when someone gives away software to someone else who doesn't have a license to use it. Since the software could be distributed via email or file-sharing websites, this form of piracy is pervasive and hard to monitor.

To counterfeit software is to create a copy that is almost identical to the original but is sold at a lower price. Software developers are understandably concerned about this form of piracy because the sale of counterfeit versions of their goods can damage the credibility of both the original product and the developer.

Software piracy also takes the form of renting, in which a user obtains a temporary copy of the program from a third party without the owner's consent. This kind of software piracy is illegal because it goes against the terms of the software's license agreement.

The software industry and its customers are both adversely affected by software piracy. Using pirated software might expose users to vulnerabilities and technical concerns due to the product's low quality. Furthermore, software piracy affects industry revenues, which can eventually lead to less investment in R&D and innovation.

Companies and governments have taken steps, such as license agreements, anti-piracy legislation, and technological measures like digital rights management (DRM), to prevent software piracy. These safeguards ensure the continued success of the software sector and encourage consumers to act in a moral and lawful manner.

In fact, software piracy is a major issue that has far-reaching consequences for both the software industry and individual users. Individuals and businesses alike need to be aware of the various forms of piracy that exist and the steps that can be taken to counter them. Protecting the software business and encouraging lawful and ethical behavior on the part of consumers can be achieved by the establishment of license agreements, anti-piracy laws, and technological solutions like digital rights management (DRM). (Bharati law House. (2022, September 3).

Trademark Infringement: A trademark is a recognizable image, such as a logo, word, phrase, or design, that is used by a company or organization to identify and set its goods and services apart from those of competitors in the market. The basic function of a trademark is to provide the goods or services provided by a given company a distinctive character. It can take many different forms, such as the appearance of the items, their packaging, a particular color scheme, etc. In its simplest form, a trademark is a graphic that aids consumers in associating a certain commodity or service with a particular source. It also plays a critical function in enhancing brand awareness, reputation, and goodwill for the company or organization that owns it.

Cybersquatting- Cybersquatting is a serious kind of cybercrime in which an individual or group registers a domain name that is confusingly similar to that of a well-known brand or corporation in the hopes that Internet users would click on the fake site instead of the real one. This immoral action is taken to profit from the popularity and trust associated with the genuine domain name by buying, selling, or trading in the counterfeit.

When more than one party claims ownership of the same domain name, or when a trademarked name is registered by someone other than the rightful owner of the trademark, domain name disputes can emerge. The Internet Corporation for Assigned Names and Numbers (ICANN) is a nonprofit corporation charged with overseeing the assignment of domain names and Internet Protocol (IP) addresses. In such circumstances, domain name registrars must follow the standards established by ICANN. The Internet Corporation for Assigned Names and Numbers (ICANN) has established standards to discourage cybersquatting and other fraudulent activities in the domain name industry and to ensure the fair and transparent settlement of domain name disputes.

Meta tagging- Adding search engine optimization (SEO) keywords to a website's meta tags is called "meta tagging," and it can help bring in more visitors. However, trademark infringement occurs when one website inappropriately uses the meta tags of another website, which can have a negative impact on the revenue of the original website. The following criteria must be completed in order to label a domain name as abusive:

First, the domain name may be abusive if it misleads users into thinking it is connected to a popular and legally protected trademark for the purpose of financial benefit.

Second, the domain name registrant has no right or legitimate interest in the name.

Third, bad faith use of the domain name is taking place.

CONCLUSION

Increased legal safeguards for online privacy and intellectual property are essential as technology develops further. Traditional legislation may not be adequate to ensure justice in the face of the rise of new forms of cybercrimes that attack intellectual property. It is important to create a safe space for importing and exporting intellectual property rights to facilitate international trade, e-commerce, and other internet enterprises. Copyrighted materials can be safeguarded in an efficient manner with the use of cutting-edge technological procedures including encryption, cryptography, digital signatures, and digital watermarks. It is also important to keep track of who owns what works so that the appropriate authors and codes can be credited. Owners of intellectual property rights should take the initiative and required safeguards to secure their works and keep up to date with current technical means of protection rather than relying solely on the legal system to resolve disputes. People are the source of social engineering threats, and people are also the source of the solutions that can counter them.

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