Cyber technology and the need for a merger of both patent and copyright laws in India

Abstract

With the unprecedented advent of Computers and the Internet and growing popularity of E-commerce, the Intellectual property rights have gained tremendous significance. However, there is a downside to this trend of increased dependence upon Internet and Information and communication Technologies (ICT) namely the difficulty posed in the detection & protection of Intellectual property infringements in the virtual space. The quandary is how does one protect one’s Intellectual property rights and prevent its unauthorised use in the online medium. The intellectual property infringements to a greater extent occur in the online medium rather than offline, due to the ease with which data can be accessed, copied and transferred and the anonymity associated with the cyberspace. The widespread use of the Internet has resulted in policymakers and legislators to formulate laws related to intellectual property rights and how they could be safeguarded against such potential misuse and infringement. As the businesses are spreading their wings in the virtual space, a new set of legal enforcements are required to provide a safe business environment in the cyber space. The policymakers and legislators have provided for several legislations and rules and are also considering other approaches to up the ante in providing a safe structure against such threats. But again it is an obligation of the intellectual property right (IPR) owner to nullify and reduce such mala fide acts of miscreants by looking at proactive methods to cater to this menace. To face this ever growing and constantly looming threat, the businesses need to formulate the best possible IP management and protection policies by investing in experienced policy makers who are capable of providing sound legal framework as an insurance against these possible threats. Although copyright is considered the most appropriate right for protection of computer programs, patents are sometimes sought for inventions or processes which consist in part of computer programs.Indian Copyright Act kept track of international conventions, the current copyright law lags far behind the west. As India did not sign the "WIPO Internet Treaties" there is no equivalent legislation in India to the US DMCA or EU directive implementing the WIPO Internet Treaties! The present Copyright Act of India does not have provisions regarding the 'technological protection measures' nor the protection of 'electronic rights management information'. Some provisions of the Indian Penal Code, 1860 (IPC) may suffice to provide for legal protection for technological measures. Section 23 of the IPC speaks of 'wrongful gain or wrongful loss. This Section may be relied upon in the case of unauthorized access to the 'protected work'. Section 28, which speaks of 'counterfeiting', may be effectively utilized to arrest the copying of protected works. India is one among the top 20 countries in the utilization of the Internet. Though it has a low Internet penetration percentage, India has become the software development hub of the world and has become a favourite destination in this area. The increase in the utilization of the Internet, problems in copyright protection related to digital transmission have become worse. It is a paradoxical situation. If India provides stronger legal protection for technological protection measures with limited fair use exceptions, it will end up in depleting public domain and harming public interest principle of copyright1. If it does not provide for legal protection for technological measures, the Internet may create havoc in enforcement of copyright protection. India enacted, the Information Technology Act (IT Act) 2000 to address problems created by 'cyberspace' regarding conduct of electronic commerce. The IT Act does not lay down any concrete framework for dealing with specific copyright violations of the Internet. There are provisions that may be construed to be seeking to address some aspects of copyrights as is obvious from the Section 43 which relates to penalty for damage to computer, system. Non-profit organizations like NASSCOM (National Association of Software and Service Companies) have been actively working as a partner with the Government of India and State Governments in formulating IT policies and legislation in India. Its work is commendable as it launched the country's first 'anti-piracy' hotline and India's first anti-piracy toll-free hotline.