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

1.2 INTRODUCTION

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 (electronic form) 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 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
3
1
Somu, C.S.. (2006). Intellectual PropertyRights In Cyberspace.
Paradigm. 10.62-68. 10.1177/0971890720060110.
 1.2INTERFACE 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 thereby diluting the grounds of copyright infringement. 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 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.
1.4 INTERFACE 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
2
A. Rahmatian, (2015) ‘Cyberspace and intellectual property rights’, in: Tsagourias, N. T. and 4
Buchan, R. (eds.) Research Handbook on International Law and Cyberspace (Cheltenham:
Edward Elgar), 2015
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. 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.

1.5 CYBERSQUATTING
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 1owner or other
5
1 7
Drahos, Peter (2002), ‘Developing Countries and International Intellectual Property
Standard-Setting’, 5(5) The Journal of Wold Intellectual Property, 765-789
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 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
morethan 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, 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 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.

6
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
 1.6 DISPUTE 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 up gradations 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.

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
space. 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 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 providers12:
- Asian Domain Name Dispute Resolution Centre (ADNDRC)
- CPR Institute for Dispute Resolution
- National Arbitration Forum
- World Intellectual Property Organization
7
5
Drahos, Peter (1996), A Philosophy of Intellectual Property, Aldershot: Ashgate6 (2001) 5 SCC 95.
 1.7 CONCLUSION

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

1.8 LET’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.

1.9 FURTHER 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
1.10 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1.How does copyright law overlap with cyber laws?

8
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 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 space 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.

1.11 ACTIVITY

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

9
 Unit 2: CYBERSECURITY AND THE THEFT OF
INTELLECTUAL PROPERTY ONLINE
2
Unit Structure

2.1 Learning Objectives

2.2 Introduction
2.3 Protocols
2.4 Key documents
2.5 Current issues
2.6 Partnership and actions to combat cybercrime
2.7 Future outlook
2.8 Let’s sum up
2.9 Further reading
2.10 Check your progress: Possible Answers
2.11 Activity

10
2.1LEARNING 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.

2.2 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 cyberspace 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. 11
Cyberspace 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. Cyber security 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. 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
It also puts consumers' health and welfare at risk by overwhelming the market with

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

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. 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, cyber security lawsuits, missed contracts, and public
relations expenses.

2.3 PROTOCOLS
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.
There could be important protocols for ensuring cybersecurity, which include
the following –
• Creating a Secure Cyber Ecosystem
• Creating an Assurance Framework
12
• Empowering Open Standards
• Strengthening the Regulatory Framework
 • Creating IT Security
Mechanisms
• Securing E-administration Services
• Assuring Critical Information Infrastructure

2.4 KEY 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
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.

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.

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

2.5CURRENT 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 13
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
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

their advanced equivalents. Developing countries also lack the resources to fight
cyberspace.
2.6 PARTNERSHIPS 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.

2.7 FUTURE 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 14

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.

2.8 LET’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 organizations and governmental institutions in
ensuring cyber security and its aspects related to intellectual property rights.

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.
“The Information Technology – Information Sharing and Analysis Center.” IT-ISAC. July 16, 2017.
https://www.it-isac.org/.
2.9 FURTHER 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

2.10 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. Define Cyberspace

Cyberapscer 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 15
Creating an Assurance Framework
 Empowering Open Standards
Strengthening the Regulatory
Framework
 The Creating IT Security Mechanisms
Securing E-administration Services
Assuring Critical Information Infrastructure

2.11 ACTIVITY

In what ways might cybersecurity attacks on protected IP

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

16
 Block-2
COPYRIGHT AND
CYBER
LAW

17
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

18
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 principle. 19
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 sameconcept but with certain restrictions.39 Copyright compliance in
cyberspace ishampered 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.

Linking: The world today is worldwide wb.The Website provides a vast volume of
material in the form of sentences,images,illustations,audio and other media. As a
result, the copyright statue covers the website. The site’s primary focus is on the
electronic publication of this content. Designing or creating a website necessities 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 view information in a limited amount of time. It
informs people about the life of work by including a clear 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 20
1) Surface linking
 2) Deep linking
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 Experienc

directly to an internal page inside a favorite 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. 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.
1.4 PEER 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 result,
he has committed patent theft. P2P technology, in short, poses a challenge to the
21
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.

Lw relating to computers Internet & E-commerce,Universla Law Publishing Co.New Delhi-

India,AuthorNandan Kamat,pp197
Legal Dimensions of Cyberspace,Edited by S.K.Verma& Raman Mittal,Indian Law Institute,New Delhi,pp-
119.

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

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. The IT Act only allows ISPs to be
found responsible for copyright violations if they offer filtering services.

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.

1.1LET’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. 22

1.1 FURTHER READING

 Jonathan Franklin, “Intellectual Property Law,” Electronic Resource Guide,
American Society of International Law, last updated February 8, 2013,
accessedonAugust2,2013, 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.

1.8 CHECK 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”.

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.

1.9 ACTIVITY

Explain Internet Service Provider Liability with relevant provisions of law.

(2000 to 2500 words)

23
24
Unit 2: COPYRIGHT
PROTECTION IN CYBERSPACE- 2
A COMPARATIVE STUDY OF
USA AND INDIA

Unit Structure
2.1 Learning Objectives
2.2 Introduction
2.3 Laws- a comparison
2.4 USA
2.5 India
2.6 Compliance with International regimes
2.7 Liability on infringement
2.8 Let’s sum up
2.9 Further reading
2.10 Check your progress: Possible Answers
2.11 Activity

25
2.1 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.

2.2 INTRODUCTION
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 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.

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)
Frank Pasquale, Toward On Ecology of Intellectual Property: Lessons from Environmental Economics
for Valuing Copyright Commons, 8 YALE J.L. & TECH 78, 110 (2006) 26
Muragendra B.T., Copyright and Trademark in Cyberspace, 3 (6) International Journal of Scientific and
Engineering Research 1, 2 (2012)
2.3 LAWS- 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.

2.4 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 infringement. The first test referred to as the
Zippo test was developed in the case of Zippo Manufacturing Co v Zippo Dot Com
Inc.
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 tes t was given in the case of Calder v Jones.
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 Com64 that decided the
jurisdiction in case of a matter under the DMCA 1998, gave quite a similar view.

2.5 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 matters of infringement of copyright over the internet
Justice S Muralidhar, Jurisdictional Issues in Cyberspace, 6 THE INDIAN JOURNAL OF LAW
AND TECHNOLOGY 1,1 (2010)
952 F. Supp. 1119 (W.D. Pa. 1997) (US District Court)
27
465 U.S. 783 (1984) (US Supreme Court)
2012 WL 517537 (E.D. Va. Feb. 16, 2012) (US District Court for the Eastern District of Virginia)
 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.
2.6 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.
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 Corp72 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.
2013 WL 1899851 (N.D. Cal. May 7, 2013) (US District Court)
Section 62, Copyright Act, 1957 28
(2011) 48 PTC 49 (Delhi High Court)
280 F.3d 934 (9th Cir. 2002)(US District Court for the District of California)
 2.7 LIABILITY 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 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.
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 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
29
464 U.S. 417, 435 (1984)(United States Court of Appeals)

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.
2.8 LET’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.
2.9 FURTHER 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)

2.10 CHECK YOUR PROGRESS: POSSIBLE ANSWERS

1. What are the reasons to hold the service provider liable for infringement?

The main reason for holding service provider liable 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. 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.

2.11 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)
30
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