CYBER OFFENCES INFRINGING INTELLECTUAL PROPERTY RIGHTS
-By Tanishtha Dhar, Intern, Seth Associates
Keywords- cybercrimes, cyber offences, intellectual property, copyright infringement, data theft
Cyber offences can be directed at infringing Intellectual property rights such as Copyright, trademark and trade secrets.This article discusses various kinds of cyberoffences and legal recourse in India.
Copyright Infringement
Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is the use of someone’s copyrighted work without permission thereby infringing certain rights of the copyright holder, such as the right to reproduce, distribute, display or perform the protected work as has been defined u/s 51 of the Copyright Act. Copying content from one site, altering it or just reproducing it on another site is possible now by digital technology and this has now become a challenge for the conventional interpretation of IPR rights and its protection. Today any person who carries a PC and a modem can easily become a publisher. Download, Upload, Save, and Publish a copyrighted work is just one click away. Any web page which contains text graphics and even audio and videos is very much eligible for copyright protection same as any book magazine or multimedia CD-ROM.
Some of the means through which copyright infringement takes place are as follows:
Piracy: If a person uses someone’s song as background music in his/her music video then he will be liable for copyright infringement. If a person downloads movies or songs from an unauthorized source then it will amount to copyright infringement.
Streaming: The unauthorized streaming of copyrighted content on different websites and platforms.
Plagiarism: The unauthorized copying and publication of someone else’s work without proper recognition and citation of his/her work.
In the case of Whitmill vs Warner Brothers, the tattoo artist S. Victor Whitmill sued the Warner Brothers for using Whitmill’s uncredited tattoo design without his prior permission in their film and the promotional materials. He pursued the case and sought a preliminary injunction to prevent the film from releasing on schedule. However, the court ruled against Whitmill’s injunction request.
It was observed that” Whitmill created this tattoo as an original piece for Mr. Tyson, that the Tattoo Release document confirms Whitmill’s intellectual property rights, and that neither Tyson nor Warner Bros. sought approval from Whitmill before the film.”
This case proved to be one of the U.S.’s most famous cases where tattoo copyright infringement was discussed in greater depth.
In the case of Yash Raj Films vs Sri Sai Ganesh Productions, where YRF claimed that Sri Sai Ganesh Productions had copied their movie, ‘Band Baaja Baaraat’, to make their movie, ‘Jabardasht’. It was upon the court to decide if Sri Sai Ganesh Productions’ movie was different enough to not be considered a copy.
The court is of the view that “the defendants have blatantly copied the fundamental, essential and distinctive features as well as forms and expression of the plaintiff’s film on purpose and consequently, have infringed plaintiff’s copyright in the film „BAND BAJA BARAT‟.
Considering the relevant facts, the court held that Sri Sai Ganesh Productions had copied substantially and was guilty of copyright infringement
In the case of Super Cassettes Industries Ltd. v. MySpace Inc., the Delhi High Court held MySpace liable for hosting copyrighted content without any prior permission and emphasized intermediary liability for copyright infringement.
“Though prima facie MySpace is not liable for secondary infringement, there is no gainsaying that infringing works are on its website. The court is under a duty to devise an equitable relief suited to the facts when liability has not been ascertained fully. At the same time precious independent talent would suffer without due recognition and monetary incentives given that monies performers would have received by licensing content are now available freely without payment. Despite several safeguard tools and notice and take-down regimes, infringed videos find their way. The remedy here is not to target intermediaries but to ensure that infringing material is removed orderly and reasonably. A further balancing act is required which is that of freedom of speech and privatized censorship.”
Similarly, in the case of Capitol Records, LLC v. ReDigi Inc, the court held that ReDigi’s platform, which allowed users to resell digital music files, infringed on Capitol Records’ copyrights, as that process involved making unauthorised copies of the files.
In another case, YouTube vs Viacom, Viacom sued YouTube for $1 billion in 2007 for copyright infringement for allegedly hosting over 150,000 clips of Viacom’s television shows and owned properties on their website. The court issued an order that required YouTube to hand over its internal communications logs and transcripts to Viacom for review purposes.
- Trademark Infringement
Trademark infringement is a violation of the exclusive rights attached to a trademark without any authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license) as prescribed u/s 29 of the Indian Trade Marks Act, 1999 which pertains to the aspect of infringement of registered trademarks. Some examples of trademarks are Lee, Skoda, Colgate, Pepsi, Brooke Bond, Sony etc. through which the customers identify the product and its origin, get assured of its quality, is advertised in its name and also create an image of the product in the minds of the consumers or the prospective consumers.
Also, to get an insight into trademarks, another concept i.e. domain names is important. A domain name is the linguistic counterpart of what we call an Internet Protocol address
- a) Cybersquatting: Cybersquatting is the use of a domain name by a person with neither registration nor any inherent rights to the name. Trademarks and domain names being similar, are exploited by some people who register trademarks of others as domain names and sell those domain names back to the trademarks’ owners or third parties at a high profit. In other words, it is registering a domain name identical or confusingly similar to a trademark to make a profit from its reputation.
- b) Meta Tagging: A meta tag is an element of web pages that is also known as a Meta element. Meta tags give us information about the page description, keywords and other data. Initially, Meta Tags were used in search engines to define what the page was about. Today, Meta Tags are abused to build false page rankings for web pages which are poorly made. Meta tags are titles, descriptions and keywords.
- c) Hyper-linking (deep linking): Linking one website with another without prior permission leads to a dilution in ad revenue, resulting in fewer people visiting the home page to access the required information. This is known as deep-linking.
- d) Framing: This practice involves using window screens as frames, for any website. Where the frame remains still while the original content is available to view, creating an effect similar to the screen-on-screen. This lessens the traffic, reduces revenue and it is unfairly benefitting from other’s intellectual property.
In the case of Yahoo Inc. v. Aakash Arora & Anr., the defendant launched a website similar to the plaintiff’s renowned website and offered similar services on its platform. the court ruled against the defendant, which had registered itself as YahooIndia.com.
The court held,” In June 1994, the said directory was named ‘Yahoo!’ which is a dictionary connotation which was adopted by the plaintiff and is providing the said service at the Internet under the domain name/trade name ‘Yahoo!”
“The degree of the similarity of the marks usually is vitally significant in an action for passing off for in such a case there is every possibility and likelihood of confusion and deception being caused. When both the domain names are considered, it is crystal clear that the two names are almost identical or similar, there is every possibility of an Internet user being confused and deceived in believing that both the domain names belong to one common source and connection, although the two belong to two different concerns.”
The Court observed that It was an effort to trade on the fame of Yahoo’s trademark. A domain name registrant does not obtain any legal right to use that domain name simply because he has registered the domain name, he could still be liable for trademark infringement.
In the case of L’Oréal SA v. eBay International AG, the European Court of Justice held that online marketplaces like eBay can be liable for trademark infringements if they have sufficient information about the infringement but fail to act upon it.
It was observed that” to impose a general monitoring obligation on an online marketplace like eBay would be inconsistent with article 15(1) of the E-Commerce Directive (which forbids member states to impose such an obligation) and with article 3(1) of the Enforcement Directive (which requires that national measures “shall not be unnecessarily complicated or costly”). This means that any injunction granted under article 11 could not impose such an obligation.”
In the case of Cartier International AG v. British Sky Broadcasting Ltd, the UK Supreme Court held that ISPs could be ordered to block websites selling counterfeit goods, highlighting the role of intermediaries in preventing trademark infringement.
It was observed by the Court that “Website-blocking injunctions are sought by rights-holders in their commercial interest. They are wholly directed to the protection of the claimant’s legal rights, and the entire benefit of compliance with the order inures to the rights-holder. The protection of intellectual property rights is ordinarily and naturally a cost of the business which owns those rights and has the relevant interest in asserting them. It is not ordinarily or naturally a cost of the business of an ISP which has nothing to do with the rights in question but is merely providing a network which has been abused by others.”
Even in the case of Starbucks Corporation v. Sardar Buksh Coffee & Co, the court observed that the name used by the defendant was confusing and somewhat similar to Starbucks, the plaintiff. As a result, the court ordered the defendant to change the name of its outlet to “Sardarji-Bakhsh Coffee and Co.”
- Trade Secret Theft
Trade secrets are confidential information which can be sold or licensed. Trade secrets are commercially valuable as well as only known to very limited people on a need to know basis. Also, several steps such as confidentiality agreement are being taken to keep it a secret.
The cyber offences related to trade secrets include:
- Hacking: When cybercriminals use advanced technology to get through most robust security and are successful in gaining access to sensitive information which may be crucial for the victim. Through hacking, cybercriminals may get access to trade secrets which may have a negative impact.
- Insider Trading: It is the act of trading sensitive information which has not been made public, and according to this information when buying and selling of a public company’s stocks by individuals take place.
- Patent Infringement
Patent infringement is the act of selling, making an offer for sale or importing patented products without any authorization from any legal authority, this violates Section 48 of The Patents Act, 1970 which enumerates exclusive rights to the patentee to avoid any third parties from making, using, offering for sale the patented invention without the consent of the patentee. One of the issues that occur concerning patent infringement is whether or not the computer software should be protected under the patent regime. As has been mentioned u/s 3(k) of the Indian Patents Act, 1970 which excludes patenting of computer software. And the second issue is whether or not the business methods are to be patented or not.
In the case of FMC Corporation vs. Natco Pharma Limited where FMC Corporation alleged that the defendant company had infringed its patent by using the same process to the one claimed in its patent with the number 298645 (IN’ 645).
The Court has also observed, “ Use of a different reagent and a completely different sequence 2022/DHC/005311 of reactions in the Natco process cannot be termed as a minor or insubstantial variation, to accuse the Defendant of infringement and piracy.”
In this case, the question before the court was whether the defendant company’s manufacturing process infringed FMC Corporation’s patent. The court found that the differences in the reagents and reaction sequences made Natco’s process different and not infringing.
In the case of Ericsson v. Micromax, when Ericsson filed a patent infringement lawsuit against Micromax over several standard essential patents (SEPs) related to GSM, EDGE, and 3G technologies. The court ruled in favour of Ericsson, holding Micromax liable for patent infringement and directing them to pay royalties for using Ericsson’s patented technologies.
“Given the nature of the right that a patentee enjoys, it is not easy to reconcile a patent holder’s refusal to grant a licence to use his patent as a violation of antitrust laws. The interface between IPR rights and antitrust laws have been a subject matter of debate in various jurisdictions and more particularly in cases where a patentee holds a SEP.”
“In my view, a potential licensee cannot be precluded from challenging the validity of the patents in question. The expression ―willing licensee‖ only means a potential licensee who is willing to accept a licence of valid patents on FRAND terms. This does not mean that he is willing to accept a licence for invalid patents and he has to waive his rights to challenge the patents in question. Any person, notwithstanding that he has entered into a licence agreement for a patent, would have a right to challenge the validity of the patents. This is also clear from clause (d) of Section 140(1) of the Patents Act, which was introduced with effect from 20th May 2003. The said clause expressly provides that it would not be lawful to insert in any contract about the sale or lease of a patented article in a licence to manufacture or use of the patented article or in a licence to work any process protected by a patent, a condition the effect of which may be to prevent challenges to the validity of a patent. Thus, a licensee could always reserve its right to challenge the validity of a patent and cannot be precluded from doing so.”
This decision highlighted the importance of honouring licensing agreements and respecting intellectual property rights, especially concerning patents.
Measures Combating Cyber Offences
- Initiatives
Information Technology Act, 2000
It is India’s special law on cyber offences and related law. This Act was amended in the year 2008 bringing new sections that covered unexplored topics like cyber-terrorism, data protection and privacy. For example, Section 66F was added which specifically defines and enumerates punishments for cyberterrorism
National Cyber Security Policy, 2013
This is the policy that is aimed at protecting information and its infrastructure. This policy majorly stresses upon a collaborative approach among the government, the private sector and partners at a global level to create a secure and long-lasting cyberspace.
Cyber Swachhta Kendra
This is a botnet cleaning and malware analysis centre launched in 2017. It aims to create a secure cyberspace by detecting and cleaning up botnets and other malware. Internet users can download this tool from the Cyber Swachhta Kendra website to scan and remove botnet problems from their devices. It is a desktop solution that enlists applications to protect systems against malware.
Information Security Education and Awareness (ISEA)
This program is an initiative launched by the Government of India which is aimed at ensuring good information security and an awareness programme among the citizens about the cyber security issues from the resource persons. It was launched by the Ministry of Electronics and Information Technology (MeitY).
- Initiatives undertaken by IT/Cybersecurity Organizations
Anti-virus and Anti-Malware Software
Many companies like Symantec, McAfee and Kaspersky have developed software that detects, blocks and removes malware from systems. This method includes detecting malware by comparing the code to a database with known malware signatures. It is effective against known threats.
Security Operation Centers (SOCs)
Many organisations use SOCs to monitor, detect and respond to cybersecurity incidents in real-time. A SOC is a centralized unit that addresses security issues at an organizational and technical level. They are designed to protect an organization from cyber threats.
Threat Intelligence Sharing
There are platforms like Information Sharing and Analysis Centers (ISACs) that allow organizations to share intelligence and its practices, improving collective defences against cyber threats. Organizations such as FireEye and CrowdStrike offer threat intelligence services.
In this digital age, where our daily lives have been deeply impacted by the technology we need to lay emphasis on cybersafety awareness and enhancing our cybersecurity. With new technology, new crimes and criminals have taken refuge of anonymity of cyberspace. It is a no-brainer that we need to understand the technical nature of these crimes in-depth and take preventive measures. While understanding the nature of these offences, we have to keep in mind that there are many cyber offences that directly or indirectly violate intellectual property rights and adopt the legal and technical measures necessary to protect one’s intellectual property rights.
BIBLIOGRAPHY
BARE ACTS
- Copyright (Amendment) Act, 2012
- Indian Trade Marks Act, 1999
- Information Technology Act, 2000
- Patents (Amendment) Act, 2005
ONLINE RESOURCES
- SCC Online
- Manupatra
RESEARCH PAPERS
- CYBER SECURITY LAWS AND SAFETY IN E-COMMERCE IN INDIA – A.K Kashyap and Mahima Chaudhary (DOI: https://doi.org/10.32631/pb.2023.2.19)
- CYBER LAW AND IPR ISSUES: THE INDIAN PERSPECTIVE – Atul Satwa Jaybhaye
- HUMAN RIGHTS AND CYBERSPACE: USE AND MISUSE – Karra Kameswara Rao
WEBSITES
https://indiankanoon.org/doc/164770226/
https://indiankanoon.org/doc/83320267/
https://www.supremecourt.uk/cases/uksc-2016-0159.html
https://indiankanoon.org/doc/175297328/
https://indiankanoon.org/doc/12972852/
https://indiankanoon.org/doc/1741869/