In the realm of Cyberspace: Piracy and Cybersquatting

“This is just the beginning, the beginning of understanding that cyberspace has no limits, no boundaries”, a well-contended phrase by the Nicolas Negroponte[1] efficiently elucidates the capability of cyberspace in the new age era of “simulated reality”. Intellectual Property relates to the intangible rights vested in inventive creations. With the changing dynamics of the digital landscape, these intangible properties are vulnerable in the cyberspace. Cybercrime involves the use of a computer as an instrument to further illegal ends, such as committing fraud, trafficking in child pornography etc.

Piracy is the most prevalent form of copyright infringement in India. The entertainment industry in India is the most vulnerable sector to piracy and these pirated movies are readily available on various third-party sites/portals on the internet concurrently when the movies are released in cinemas. The Copyright Act, 1957 did not have any provisions to protect the unauthorized distribution and use of work available on the internet. Pre-digitization, imitating a sound recording or video resulted in a degree of loss of quality. However, with the advent of multiple softwares in file-sharing systems and Digital Rights Management (DRM) systems, copyright violations are escalating at a rapid rate. In light of the rapid changes involving the cyberspace, the Copyright Act was amended in 2012 with insertion of Sections 65(A)[2] and 65(B)[3] to incorporate strict measures to restraint any form of digital piracy. Furthermore, a proposal for the Draft Copyright (Amendment) Rules, 2019 has been made by the Government of India to further encompass Digital India. Post the Copyright (Amendment) Act, 2012, the Indian Judiciary has dealt with issues relating to digital piracy to protect the subject matter by passing John Doe orders against unknown defendants and blocking infringing sites. While passing suitable injunction orders, the judiciary is to consider the volume of business, loss of opportunity and to ensure the effective implementation of the restriction of misusing the Intellectual Property Rights.[4]

In 2016, a controversial bollywood movie “UDTA PUNJAB” was leaked online two days before its initial release in the cinemas.[5] The film producers initially filed a complaint to the cyber-crime cell in Bandra, Mumbai and subsequently proceeded with an immediate application before the Bombay High Court seeking a hybrid relief, merging the order under representative suit with principles of John Doe order. However, the court did not find it feasible to block the entire website and ordered the removal of specific links or render them inaccessible.

The unexpected growth of cyberspace and electronic commerce has conveyed unprecedented variety of challenges to the concept of trademark statute as well, one being the challenge of domain names and their relation to trademarks. This challenge is brought to light when infringers register domain names of well-known trademarks with the bad faith to resell and earn profits. Domain name has no geographical limitation for access, use and invasion and cybersquatting is the registering or using of the domain name with a mala fide intention to profit from the significant goodwill of a trademark belonging to someone else. With over ten million domain names being reflected and accessible over the internet, at times cybersquatting and domain name hijacking are overlooked and not reported. Social media sites like Facebook, proactively reports instances of illegal deceptive domain name registrations l., that would confuse the users. Unlike other developed nations, India does not have a separate legislation for protection of domain names and resorts to the Trademark Act, 1999.

Conclusion

Enhancing cybersecurity and protecting inventions in this era of digitization is quintessential for each nation’s economy. Digital Risk Management (DRM) Schemes were incorporated in the Copyright (Amendment) Act, of 2012 to conform in compliance to the WIPO Internet treaties to protect the copyrighted works online. The schemes are a form of artificial intelligence programming with tools to control the authorized digital access to digital content and restrict unauthorized access. These schemes entail protection of the literary works and artistic compilations from unauthorized duplication and modification. WIPO has played a vital role in solving disputes, granting shield protection for domain names and is pivoted in evolving concrete principles for the same. However, each nation is also required to holistically plan on laying down statutory safeguards to protect these domain names and stringent laws to punish cyber squatters in lines with the WIPO evolving principles. Maintaining a domestic law with an international WIPO protection can help in providing an option to the victims of copyright and trademark infringement to obtain rightful statutory damages which will further manoeuvre for the enablement of protecting their Intellectual Property online. Though India is at the incubation stage right now, jurisprudential development is inevitable as Intellectual Property disputes converge with the realm of cyberspace.

[1] A Greek American architect. Further information available on https://web.media.mit.edu/~nicholas/

[2] Section 65(A)- Protection of Technological Measures and states that any person who circumvents an effective technological measure applied for the purpose of protecting any rights conferred by the Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall be liable for fine.

[3] Section 65(B) – Protection of Rights of Management Information states that any person, who knowingly-(1) removes or alters any rights management information without authority, or (2) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

[4] E.S.P.N. Software India Pvt. Ltd. v Tudu Enterprise and Ors. (CS/OS/384/2011)

[5] Balaji Motion Picture Limited & Anr. v Bharat Sanchar Nigam Ltd. & 49 & Ors, Notice of Motion (L) No. 1783 of 2016 in Suit (L) No. 633 of 2016, dated 16th June 2016.

The article was originally posted on www.lexology.com on March 26, 2020 and can be accessed here.