“This is just the beginning, the beginning of understanding that cyberspace has no limits, no boundaries”, a well-contended phrase by the Nicolas Negroponte2 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)3 and 65(B)4 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 Right.5
In 2016, a controversial bollywood movie “UDTA PUNJAB” was leaked online two days before its initial release in the cinemas. 6 The film producers initially filed a complaint to the cybercrime 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.
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.