Intellectual Property in the Digital Times

Introduction

Intellectual property (IP) has long been a heated topic, but the rapid advancement of digital technology has introduced new challenges and opportunities for IP owners. Social networks, open innovation movements, collaborative working practices, and other developments in the digital sphere have all contributed to an increase in IP theft and piracy and with the development of new technology has also resulted in an explosion of applications that can be utilised for creative endeavours or as a source of creative output. We shall examine the current situation concerning intellectual property in the digital age in this blog.

What is Intellectual Property?

Inventions, literary and artistic works, designs, symbols, names, and pictures used in business are all examples of Intellectual Property (IP).[1] Patents, copyright, and trademarks are a few examples of IP protection under the law that allow people to profit financially or gain notoriety from their inventions.[2] The IP system seeks to provide an environment where creativity and innovation can thrive by striking the correct balance between the interests of innovators and the larger public interest.[3]

IP rights give the owner exclusive rights to use the creation and/or obtain economic benefits from it.[4] This means that people who create IP, such as authors, inventors, designers, companies, investors and researchers, are entitled to a host of exclusive rights that only they can exercise, such as the right to use, sell, license and modify the creation, and the right to the financial rewards that come from these uses.[5] If someone uses one of these creations without the owner’s permission, they have breached the IP right and have committed IP theft.[6]

IP Theft and Piracy in the Digital Era

The term IP theft refers to the illegal use and/or illegal appropriation of IP, including unauthorized copying of digital content, use of copied data and intellectual property, and illegal downloading, sharing or transfer of data.[7]

The rise of digital technology has brought about new challenges and opportunities for the owners of IP.[8] The borderless nature of digital technology has resulted in IP theft and piracy (the illegal copying of digital content) and has become a major challenge to the IP industry.[9]

On the other hand, The rise of new technology has led to an explosion of applications that can be used for creative purposes, or as a source of creative content.[10]

The Delhi High Court recently prohibited the defendants from using the plaintiff’s name and mark, “AAJ TAK” without the plaintiff’s authorization on a variety of social media platforms, including Twitter, Facebook, and Instagram. The case was Living Media India Limited & Anr. v. Aabtak Channel.com (John Does) & Ors.[11] The court ordered that all infringement-related postings, pages, and videos using the plaintiff’s trademark, AAJ TAK, be removed from various social media networks.[12]

Collaboration Culture in the digital era

Social networks have created new opportunities for collaboration, and have become the main source of information and news. These social networks have played an important role in the Arab Spring, the Occupy movement, and other social movements[13] Arabs have also embraced digital media as a platform for civic involvement and to exercise their right to free speech.[14]

At the same time, social networks have played a major role in the dissemination of illegal content, including IP theft and piracy.[15] The growth of social networks has also resulted in a change in the culture of sharing and collaboration; While collaboration and the free exchange of information and ideas used to be common and widely accepted practices, today’s collaborative environments have increased IP theft. The ease of access to digital technology has allowed users to easily copy and share content and has made it increasingly difficult to track and trace the flow of digital data.[16]

The increase in Open Innovation (the collaboration between companies and researchers and individuals) is a trend that is widely seen in the digital era. Companies are increasingly engaging in open innovation, and research is increasingly being conducted in a collaborative environment.[17] In the past, companies were the main creators of IP, but now individuals are increasingly creating IP. The rise of Open Innovation has led to an increase in IP theft and piracy.

The Rise of Technology and Its Implications on IP Rights

The growth of technology has had both positive and negative implications on the rights of IP owners. On the one hand, technology has made it easier to access and use IP and has increased its value of IP. However, it has also made it easier to steal and pirate IP. The growth of digital technology has led to an increase in the speed of data. Data is being created and distributed at a higher speed than in previous decades, and the global accessibility of digital technology has enabled this data to be shared and copied at a much faster rate. The increase in the speed of data has resulted in a shorter life span for data, making it more difficult to track and trace the flow of digital data.

Possible Solutions to Fight IP Theft and Piracy in the Digital Era

Fighting IP theft and piracy requires a multifaceted approach. To develop workable solutions for the digital era, major IP industry stakeholders must cooperate. Governments, policymakers, the private sector, business owners, IP rights owners and users, technologists, and researchers are some of these stakeholders. To come up with solutions that take into consideration the present state of events surrounding IP in the digital era, the stakeholders must collaborate.

The Delhi High Court also emphasised that while online intermediaries, such as Facebook and Instagram, may not perform an active role in posting the infringing content on their platforms, as facilitators of the infringement, they are under an obligation to remove such content as and when it is brought to their notice/knowledge.[18] This was done in the cases of Facebook Inc. v. Surinder Malik & Ors. and Instagram LLC v. Surinder Malik & Ors.[19]

India ensures the protection of IP, through various acts which give certain rights such as: –

1) Copyright and associated rights protected under Copyright Act, 1957: – The rights of performers, producers of phonograms, and broadcasting organisations in respect of fixation on their programmes for copyright in their work. The rights of artists, painters, musicians, sculptors, photographers, and authors for copyright in their works. The rights of computer programmes, whether in source or object code.[20]

2) Ownership of trademarks by traders is protected under Trade Marks Act, 1999.[21]

3) The manufacturer’s and producer’s right to the geographical designation of such goods and production is protected under the Geographical Indications of Goods (Registration and Protection) Act, 1999.[22]

4) Designers should be commended for their eye-catching, unusual designs protected under the Designs Act, 2000.[23]

5) Rights of farmers and plant breeders and the inventor’s right to patent his creation protected under the Patents Act, 1970.[24]

6) Right of computer technologists to their layout design of integrated circuits is protected under Semiconductor Integrated Circuits Layout-Design Act, 2000.[25]

7) Right of businessmen to the protection of their undisclosed information on technology and management is protected by an action for breach of confidence or contract. [26]

Conclusion

The acceleration of digital technology has posed new challenges and opportunities to owners of IP.  Collaboration and the rise of new technology have led to an increase in IP theft and piracy. Governments and policymakers need to create effective legislation that is capable of addressing the challenges and opportunities of the digital era. The private sector should improve transparency and work towards removing the threat of illegal content and adhere to the IP protection laws of the country and protect the IP holders from getting their rights violated.

Author(s) Name: Ashutosh Gupta (Law Centre 1 University of Delhi)

References:

[1] ‘What Is Intellectual Property (IP)?’ (WIPO) <https://www.wipo.int/about-ip/en/>  accessed 15 November 2022

[2] Ibid.

[3] Ibid.

[4] ‘World Trade Organization’ (WTO) <https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm#:~:text=Intellectual%20property%20rights%20are%20the,a%20certain%20period%20of%20time>  accessed 02 December 2022

[5] ‘World Trade Organization’ (WTO) <https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm#:~:text=Intellectual%20property%20rights%20are%20the,a%20certain%20period%20of%20time>  accessed 02 December 2022

[6] ‘Breach of Intellectual Property: Upcounsel 2022’ (UpCounsel)< https://www.upcounsel.com/breach-of-intellectual-property>  accessed 02 December 2022

[7]  ‘Intellectual Theft: Everything You Need to Know’ (UpCounsel, 27 October 2020) <https://www.upcounsel.com/intellectual-theft>  accessed 15 November 2022

[8] ‘Piracy of Intellectual Property: Upcounsel 2022’ (UpCounsel) <https://www.upcounsel.com/piracy-of-intellectual-property>  accessed 15 November 2022

[9] Ibid.

[10]‘Intellectual Property Theft: Upcounsel 2022’ (UpCounsel, 02 September 2022) <https://www.upcounsel.com/intellectual-property-theft>  accessed 15 November 2022

[11] Living Media India Limited & Anr v AabtakChannelCom (John Does) & Anr (2020) Civil Suit (COMM) 193/2022

[12] Ibid

[13] Suh CS, et. al, ‘How Social Media Matter: Repression and the Diffusion of the Occupy Wall Street Movement’ (2017) 65 Social Science Research 282

[14] Ibid

[15] Greenspon J, ‘Social Media and the Art of Intellectual Property Theft’ (2016) 12 Media Transformations

[16]‘Intellectual Property Infringement Social Media: Ip Rights’ (Clarion) <https://www.clarionsolicitors.com/articles/intellectual-property-infringement-on-social-media-a-growing-problem>  accessed 15 November 2022

[17] Ghafele R, ‘Managing IP under an Open Innovation Perspective’ (Kluwer Patent Blog, 23 June 2020) <http://patentblog.kluweriplaw.com/2020/06/22/managing-ip-under-an-open-innovation-perspective/>  accessed 15 November 2022

[18] Facebook Inc v Surinder Malik & Ors (2019) CM(M) 1263/2019

[19] Ibid

[20] Copyight Act 1957

[21] Trade Marks Act 1999

[22] ‘Geographical Indications of Goods (Registration and Protection) Act 1999

[23] Designs Act 2000

[24] Patents Act 1970  

[25] ‘Semiconductor Integrated Circuits Layout-Design Act, 2000’

[26]‘Intellectual property rights in India’ (Legal Services India) <http://www.legalservicesindia.com/article/1742/Intellectual-Property-Rights-in-India.htm>  accessed 07 November 2022

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