Importance of Protecting Intellectual Property Rights in Digital Age

The Author, Abhirami Retheev, is a 2nd year, LLB student at Symbiosis Law School, Pune. She is currently interning with LatestLaws.com. 

Intellectual property has been a relatively younger field of law compared to others. However, with technology taking over our lives, it is essential that we now protect our intellectual property diligently. Below is a comprehensive article covering the concept of intellectual property including the definition, nature and types, followed by the need to protect intellectual property in the digital age.

Intellectual property, as the name suggests, are basically products of one’s intellect such as ideas or creations of mind which are unique to a person. In other words, they are the creative work of human intellect.[1] According to Article 2 of the Convention Establishing the World Intellectual Property Organization (1967)[2], intellectual property includes

• literary, artistic and scientific works, scientific discoveries
• performances of performing artists
• phonograms (any letter, symbol or character that represents a sound)
• broadcasts
• industrial designs
• trademarks, service marks and commercial names and designations.[3]

Intellectual property is protected by conferring certain rights to its original owner, i.e., the creator. Intellectual Property and its rights primarily fall under two categories namely Copyrights and Industrial Property. Copyrights are for literary (novels, poems, films, musical works) and artistic works (like drawings, paintings, photographs, sculptures and architectural designs). It also includes rights of performing artists like singers, actors, musicians, radio and television broadcasts etc. Copyright protection is available for a period of 50 years after the death of the author. Industrial property includes patents, trademarks, industrial designs and geographic indications of the source. The period of protection is usually for a fixed number of years and depends upon the kind of property protected.[4] Thus, patents, trademarks, copyrights, trade secrets etc. are collectively referred to the Intellectual property. In the recent years, some new additions have been made to the meaning of IP. Now, IP includes geographical indications, protection of plant varieties, protection for semi-conductors and integrated circuits, protection of undisclosed information.

The most common types of intellectual property are patents, copyrights, trademarks and trade secrets.[5]

1. Copyrights: In India, Copyright is governed by the Copyright Act, 1957 and Copyright Rules, 2013. Copyright means an exclusive right to do or authorize the doing of certain acts in respect of any work. It includes the right to reproduce/issue copies/translation or adaptation of a literary work, right to perform a work in public, right to make a film or sound recording in respect of the work, etc.[6]  Internationally, Copyright is governed by the Berne convention (1886), Universal Copyright Convention (1952) and Rome Convention (1961)

2. Patents: Invention is the subject matter for patents. To acquire patent protection, the subject matter should meet three conditions –Invention should be new, it should be innovative and it should be industrially applicable.  In India, patents are governed by Patents Act, 1970 and Patent rules, 2003. Patents Act provides that any subject matter of patent which is frivolous, or claims to be something contrary to the well-established natural/scientific laws cannot be considered as ‘innovations’ for the purpose of patent protection. Similarly, inventions, the use of which is contrary to public order or morality, a method of agriculture, process of medicinal/surgical/curative treatment etc. are not considered under inventions.[7]The period of protection available to the holder is typically 20 years.

3. Trademarks: In India, Trademarks is governed by Trademarks Act, 1999 and Trademarks Rules 2002. Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colors.[8] Trademark protection can be refused if

• The mark is not capable of being distinguished from other similar marks.
• It contains mark or indications that has become a part of current language
• It is expressly prohibited under the Emblems and Names (Prevention of Improper Use Act, 1950)
• The mark deceives or confuses the public, hurts religious sentiments, or contains scandalous or obscene matters.
• The shape of goods is a result of the nature of goods itself, or it is necessary to obtain a technical result, or gives a substantial value to the goods.[9]

The following are some features of intellectual property rights-

• A right to intellectual property is an intangible right[10] just like goodwill.
• It is treated as a movable property
• It is a bundle of rights. It can include right to prohibit anyone from using it, or to control reproduction of his works for a certain period of time.
• IPR are negative rights because they prevent others from doing certain things.
• IPRs are statutory rights because they originate from statutes like the Copyright Act (1957), Patent Act (1970), Trademarks Act (1999), Design Act (2000) etc.

1. Utilitarian Theory:  Utilitarian theory, also known as Incentive theory rests on the principle of “the greatest good for the greatest number”. The intellectual works created has a beneficial effect on the society. Therefore, it is essential to ensure that the creators stay motivated to work further on creations and contribute to industrial progress. The monopoly rights act as an incentive to invent and innovate.

2. Lockean Approach: Also known as Natural Rights Theory, it states that one has the right to the fruits of his own intellectual labor. The works created is unique to himself. Therefore, monopoly is granted to the owner so that he enjoys exclusive rights over his creations. However, an exception exists in cases where it is in the larger interest of the society that he forgoes his monopoly rights. The best example would be the vaccines for Covid-19.

3. Personhood theory:  The work created is essentially a reflection of the creator. Therefore, it requires to be protected.[12]

The digital age poses numerous challenges to the protection of intellectual property. In Google LLC. v. Oracle, America, Inc,[13] Google was accused of copying more than 11,000 lines of computer code for its Android Operating System. In Perfect 10 v. Google Inc[14], the mere display of thumbnails by Google was held to be a copyright infringement.

With massive information available at the fingertips, the need for enhancing protection for intellectual property has heightened. From the academic perspective, digital copies of journals, publications and books are available thereby transcending physical boundaries. Anyone from any part of the world has access to these copies. On a positive side, this facilitates sharing of knowledge and resources. However, on a pessimistic note, we cannot ignore the possibility of exploiting such intellectual property for monetary purposes without authorization of the creator.  E-newspapers and blogs too come under the umbrella of knowledge sharing resources.

In Jagran Prakashan Limited vs. Telegram Fz LLC & Ors (2020), the circulation of e-newspapers freely through online messaging platforms was held to be a copyright infringement. Over the recent years, OTT platforms have gained prominence. The lockdown due to the pandemic accelerated its growth. With movie theatres losing its charm due to threat of virus, movies are being released directly to the OTT platforms. Copyrights for film has existed for decades. But now, with a change in the mode of release, the copyright infringement needs to be taken seriously.

Similarly, the release of music videos, artistic performances, creative strategies and innovations directly to the streaming platforms, it becomes a daunting task to curb the circulation of unauthorized copies of artistic works released online. Further, online shopping business have their own websites where they include aesthetic as well as technical features to attract potential customers. Since these are available to the public, the possibility of the design or the contents of the website being copied or misused is high. Thus, unlike the bygone decades, the need to protect intellectual property in the digital age has become crucial.

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