The IT Act has been efficient in regulating cyberspace, but it has failed to preserve one of the most significant legal properties arising from human intellect, namely, Intellectual Property, which is knowledge and information expressed in a physical or digital form and comprises copyrights, patents, trademarks, geographical indications, as well as integrated circuits. Infringement of intellectual property and the inadequacies of the existing legal framework are the most troublesome aspects about the cyber world.

IT Act of 2000 includes three major goals: first, to adhere with and implement with the UN appeal for consistency in international legislation, in addition, to substitute pen-and-paper operations with online transactions, communications, and store; second, to enable eCommerce by making data interchange and storage of massive amounts of data on the internet easier; and third, to ensure that the UN request for consistency in international law is implemented. The IT Act was enacted to make e-commerce secure, but it has so far failed to acknowledge cybersquatting, copyright, trademark, as well as domain violation in cyberspace.

The other problem of power and implementation would be if, in this international cyberspace, an Indian court can issue global injunctions, direct global blockage, or direct modifications, substitutions, or removals of domains, trademarks, and so on on a worldwide platform.

Because the internet is a freeway of information, one of the primary problems concerning cyberspace is the violation of copyright, trademark, domains, and other types of intellectual property. The fundamental issue is an absence of an adequate legal framework, as there is little understanding about copyright infringements, trademark difficulties, and other IP rights infringement occurring in the cyber realm.

Copyright violation in the cyber world

The purpose of copyrights is to safeguard the creativity of authors, actors, creators, and others who produce literature, dramatic, films, soundscapes, pictures, visuals, as well as other types of literary and creative audio and video creations. The primary legislative goal behind the passage of the copyright legislation was to reassure, motivate, & encourage authors, composers, theatre actors, and filmmakers to develop works of authorship. Thus the restricted right to replicate copies (for digital and other forms), build infringing copy out of the authentic creations, display the creations in the general populace, also make interpretations and modifications. Due to the web, it is relatively easy to produce duplicates by applying software, transcribing (using Translation), altering (using software such as Adobe), and infringing other rights stated within Section 14 of the Copyright Act of 1957 by using freely available digital resources.

Copyright violation

Copyright is violated when an unauthorised individual does something that breaches the copyright proprietor’s rights. When a sales, hiring, display, importation of copies, and perhaps other unauthorised content which is unfavourable towards the copyright owner is brought into the country, the copyrights are considered to be breached. Downloading, uploading, and simply copy-pasting protected content on the online platform is as simple as a button press on the worldwide internet, which is the freeway of knowledge worldwide. The existing copyright law grants the copyright owner the unique right to authorise the dissemination about his own protected content; however, if such protected content is on the internet, virtually anyone can become an author because it is very easy to simply extract and store the work via a web page without requiring any kind of licence or approval from the copyright owner and replicate the same on other webpage and take credit for the effort, talent, skill, and ingenuity.

The burden of proof for showing the misleading likeness and generating an obvious case for the offender is on the copyright owners, according to Section 51 of the Copyright Act of 1957. It is vital to understand that a website may be afforded the same level of protection as a book, journal, or electronic device for copyright infringement. Because most devices nowadays can duplicate photographs, drawings, and visuals, many copyrighted works could be easily violated through the internet.

A court in Religious Tech. Ctr. v. Netcom Online Communication Servers defined the three types of copyright violation as:

  1. Direct: When there has been a direct link between the infringer’s infringement of the Copyright Act’s privileges and the infringer’s infringement of the Copyright Act’s rights. It is extremely difficult to find the offender in the context of internet violation.
  2. Contributory: When internet providers, web administrators, as well as other operators, could be held accountable for helping others in copyright infringement, the most important component which must be included is that the third party, i.e., the internet provider, websites hosting, or the operators, has creative awareness of the violation going in considering taking effect on the digital site or actively aided, encouraged, prompted, and contributed to its specific infringement act. Moreover, in the matter of Sega Enterprises v. Maphia, where the defendant Maphia has been a bulletin board service provider who would enable other persons to post and download games developed by Sega Enterprises on their platform, the court concluded that there was no clear unauthorised copying by Maphia since he is only an operator of the bulletin board service, but Maphia remained responsible for contributing violation. The court established the criteria for joint copyright violation during the matter of Fonovisa Incorporated v. Cherry Auction Inc. This criteria shows whether the middleman on the internet has “actual knowledge” of the breaches currently happening on the sites. If the response is affirmative, then there is a joint violation of copyrights.
  3. Vicarious: When an infringement occurs via an internet website or a provider, and the violation benefits the internet website or even the provider financially, such third parties towards the violation are held accountable under the copyright act. Section 79 of the IT Act of 2000 deals with the exemptions of intermediaries’ responsibility and provides them with immunity for any third-party information generated on their servers; however, the immunity is subject to specific circumstances stated in sub-clause (2) & (3).  The element of contributing copyright violation has been handled in Section 79 of the IT Act, 2000 on a broad level; however, it has failed to acknowledge vicarious copyright infringement on intermediary platforms. Some claim that “due diligence” under Section 79 encompasses vicarious copyright infringements, although this is a controversial matter which must be addressed by judicial scrutiny. As a result, important acts such as the Copyright Act 1957 and the IT Act 2000 are inactive regarding digital copyright infringements. While the Copyright Act 1957 protects computer-based technology and applications, it does not protect against pirated software on the web.

Violation of trademarks and domains in cyberspace

A trademark is described as a mark that can be displayed in a graphical fashion just so the goods or services incorporated into that mark are easily recognisable and distinct in the perspective of the individual looking at that mark, according to Section 2(zb) of the Trademark Act, 1999. The method and reasons for registration have already been detailed in great depth in Section 11 of the Trademark Act 1999. The major function and significance linked with both the trademark and its licensing is to develop assets, preserve brand recognition, and provide a flavour of originality towards the brand distinctiveness. Additionally, a trademark works perfectly for consumers, clients, collaborators, and operators to communicate effectively, locate, and acquire the products and services linked with the trademark.

A domain is just an ISP (Internet Service Protocol). It acts as an address for a certain website. In simpler terms, a domain name consists of digits like 425.236.856 that, like a cellphone number, maybe dialled to gain accessibility to the website that the user wishes to visit. The internet’s ease and the introduction of the letter-number monitoring system have substituted the need to record and memorise numbers with just entering phrases like “www.google.co.in“, “www.yahoo.com“, “www.gmail.com“, and so on. As a result, such IP addresses are the domains that make the material on the web freely reachable.

The trademark vs domain name conundrum

The Trademark Bill was originally created with the intention of registering, protecting, and preventing fraud in the use of products and services. Most trademark holders have traditionally preferred to purchase domain names that are similar to their trademarks; for illustration, a law office with a registered trademark for “Nippon cool” will choose a domain such as “www.nipponcool.com” above “www.lawcool.com.” The basic issue is that domain names are issued by the ICANN (Internet Corporation for Assigned Names and Numbers) on a “first come, first served” basis, resulting in “aggressive domain names” that are offensive to registered trademarks. As a consequence, there are domains generated that include a trademark rights. However, the domain name’s holder still has no legal right, claim, or real power over the official title of the trademark it is bearing.

  1. Cybersquatting: An Internet Corporation for Assigned Names and Numbers (ICANN) assigns domains upon a first-come, first-served basis. There have been numerous cases where domain names had the same name as a legitimate trademark owned by a third party. If trademarks and domain names are identical, domain name owners may be considering selling these domain names on the open market to gain or risk compromising the brand.
  2. Reverse domain name hijacking: Under the fear of high litigation costs and legal proceedings, the domain owner may relinquish control of the domain towards the trademark owner. Reverse cybersquatting is generally carried out by affluent companies and organisations, or the victims are often smaller businesses and people who lack the financial resources to battle the enterprises.
  3. Meta tags: A meta tag is analogous to a short label on a shirt, T-shirt, or other accessories clothing products; when someone looks at that tag, they can learn a lot about the product’s quality and brand. Meta tags were created with the intention of assisting search engines in placing web pages in an organised manner in response to user requests. Meta tags are being exploited to create fake rankings and misuse trademark and domain names associated with genuine owners’ trademarks online.

Key rulings concerning Trademarks vs. Domain Names

Yahoo! Inc. v. Akash Arora and Another: Yahoo! lodged a trademark violation suit in the Delhi High Court after Aakash Arora registered a website under the name “www.YahooIndia.com,” and the Court has ruled through Yahoo! quoting that Aakash Arora had registered the domain name in his favour to divert off revenues from the exploitative use of Yahoo!s trademark. “Simple registering of a domain name which infringes on the rights of a valid trademark holder does neither provide an absolute right,” the court stated. Because registering a domain name doesn’t really confer ownership of that domain, the defendant may be held accountable for the violation of the trademark.

Tata Sons Ltd. & Anr. v. Arno Palmen and Anr.: The plaintiff filed a perpetual injunction complaint in the Delhi High Court for trademark violation. The defendant registered a domain name called “www.tatainfotech.in” that infringed on the plaintiff’s trademark. The High Court ruled in favour of the plaintiff, stating that the domain name was formed in bad faith in order to steal money from the plaintiff as this plaintiff has been a well-known corporation that offers unique goods and services all across India. As a result of the High Court’s rulings, the domain registration was revoked.

Assessing the ability of Indian courts to issue international injunctions and directives

Injunctions, reparations, border compliance, or criminal penalties are by far the most typical solutions for copyright, trademark, or other intellectual property violations. However, the remedy of injunction is the most prevalent of all the remedies. Because the internet is a boundless world in which any capable authority in India could grant relief in the form of similar an injunction, thus preventing violating content, these banning measures can only be implemented inside India’s borders and not globally. Because injunctions, banning, and other reliefs will be limited to India, ordinary people may turn to use Virtual Private Networks (VPNs) to also obtain illegal content, rendering court rulings ineffective. To clear up this prevalent misconception about geo-specific banning or cross-border compliance, the researcher offers the following arguments in support of worldwide injunctive relief and multiplatform restriction irrespective of territory:

Jurisdiction

When some information on the internet infringes over an Indian user’s copyrights, the court has jurisdiction based on a universal reading of Sections 2(1)- sub-clause (k), (l), (j), and (o) of the IT Act 2000, where the phrases “computer resource” “computer network which contains one or more computers” thus it can be claimed that a computer can comprise of a worldwide network as well as the Indian court can command destruction or deletion on a worldwide level, while Sections 2(2) and 75 of the IT Act 2000 use the phrases “violation committed beyond India,” while the Copyright Act 1957 and Trademark Act 1999 need not restrict the worldwide authority in any way.

Moreover, in YouTube v. Geeta Shroff, an Hon’ble sitting judge of a Delhi High Court decided that any defamatory information published from India’s jurisdiction can be prohibited and removed through the method through which it was submitted if it was obtained beyond India. It is stated that because the concept of “recognition and enforcement of foreign judgement” should be observed in the nation where the user lives, the individual who acquired the content overseas might be ordered to erase the illegal content. The Hon’ble Court concluded in Modi Entertainment Network and Others v. WSG Cricket PTE Limited that injunctions can have an influence abroad given that the rights therein subject matter are in exclusive privileges. Thus the judiciary of India could possess in exclusive competence.

International injunction

After a reasonable and convincing argument has been made in court for the awarding of an injunction, an injunction on the worldwide basis is permissible since, according to Section 79 of the IT Act, all intermediaries are guaranteed protection from responsibility where any kind of data or content is posted onto their platforms by third parties. However, the safe harbour immunity is limited to certain exceptions, whereas it might be claimed that an order issued by a court ought to have maximum impact.

In the matter of X v. Twitter Inc, the Highest Court of New South Wales decided that worldwide orders against the defendant-twitter were required as companies have a public duty where worldwide orders attempt to protect the interest of the public. 

As a result, it is established that, under the existing legal context, Indian courts also have authority as well as the power to issue worldwide injunctions and judgments in the public interest over violating works in order to safeguard the personal IP rights of netizens.

Conclusion: In India, the law does not yet provide for the punishment of cybersquatting. Every other domain name that ends with .in suffix in India is registered with the National-Internet-Exchange-Of-India (NIXI), that is an autonomous institution. Because the IT Act of 2000 falls short on the issue of digital piracy, and the copyright act and other IP-related legislation fail to accurately describe a court’s international injunction-granting authority, a new domain name registration and jurisdiction-related regulation should be passed to provide legal recourse for domain names, copyright violation, and other IP-related issues of operating exploitative and bad faith operations on the online platform.

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.

Author

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    Khadeeja Zaidi is an undergraduate student studying B.A.LL.B (Hons) from the Faculty of Law, Aligarh Muslim University, Aligarh. Khadeeja aspires to be an expert in Cyber Law, Intellectual Property Rights and Technology Law. Along with her academics, Khadeeja is fond of writing blogs, posts, and articles highlighting contemporary issues revolving around Cyber Space and Intellectual Property Law.