Brain Booster Articles
INTELLECTUAL PROPERTY IN IT
Author: Sneha Nandi, V year of B.A.,LL.B.(Hons.) from Law College Durgapur
‘Tata Group of companies’, who is unknown about this name. The founder of the company is ‘JAMSETJI TATA’. We all are familiar with the name and its logo also’‘.
This logo is registered under Trademark Act,1999. Delhi High court in a recent judgement says that ’TATA’ is a "well known mark”.
Nowadays IP (Intellectual Property) is becoming the backbone of IT (Information Technology). In this fast modern age, every sector is working hard to develop new software and new technological ideas. The rapid growth of these technologies is confusing to the consumers as well as to the companies, to avoid these confusions there is a need for Intellectual property rights. These Intellectual property rights prevent the violation that occurs in the field of Information Technology. As technology in all fields is developing exponentially, the field of intellectual property is also expanding correspondingly.
A QUICK GLANCE AT INTELLECTUAL PROPERTY RIGHTS
What is Intellectual Property Right?
Intellectual Property Rights are such rights that are given to protect human intellect, to protect the creation of the human mind. Persons who create new creative ideas always want to protect their ideas, in order to protect them, they seek protection under the umbrella of Intellectual Property Rights.
Types of Intellectual Property Rights
There are two types of rights available from intellectual property
Moral Rights- Protection of the non-economic interest of the author. The author has the right to name.
Economic Right- The owner has the right to derive financial reward from the use of their works by others. This right can be transferred by the author to another person by contract or any other grounds established by law.
Elements of Intellectual Property
The invention in all fields of human endeavour.
Literally artistic and scientific works.
Protection against unfair competition.
Trademark, Industrial Design, Service marks, Commercial names, Trade secret etc.
Intangible in character
Challenges faced by Intellectual Property
Rapid growth in technological development.
On a global scale law has no tempo with technological development (e.g., Artificial Intelligence, Big Data).
Increase in the transmission of information requires legal adequate protection.
Forms of Intellectual Property rights
Copyright- It is a form of Intellectual Property Right, used to describe the rights the creators have over their literary and artistic works. Copyright protection does not protect ideas, procedures, or methods, it only extends to expression. The term of copyright lasts the lifetime of the author plus 60 years according to Copyright Act, 1957.
Case: Monkey selfie; BABOON NARUTO
In 2011 a photographer named David Slatter had set up his camera in the Indonesian rainforest and a monkey snapped its own picture. In his book, Slatter published the picture as a part of that book. In the copyright act, the owner of a selfie is the one who has taken the selfie. So, PETA (People for the Ethical Treatment of Animal) issued a case on behalf of the monkey as “Naruto’s next friend” against Slatter alleging copyright infringement of Naruto’s work. In 2015 the court decided the Statute of copyright law necessarily excluded animals.
Registration of Copyright – According to the Berne Convention copyright protection is obtained automatically without the need for registration. But voluntary registration of copyright can solve the dispute over ownership creation and transfer of rights.
Are computer programs or software protected under Copyright Law?
Countries, which have signed the Berne Convention, software or computer programs of those are protected under copyright law as literary works.
e.g., India, United States of America, Russia, United Kingdom etc. A website can also be subject to copyright because copyright protects original works.
Patent - A patent is an exclusive right granted to a person, who invented a new article or improved an existing article.
The patent can be divided into three groups
Large pioneer invention (covid-19 vaccine)
Improvement invention (updates of software)
Moral rights from patent- Rights of authorship. It is a territorial right, protected indefinitely and belongs to an individual. In Russia, it is called non-economic rights.
Economic rights from patent- The author gets the exclusive right to use the object of patent law. Right to remuneration for the use of an employee's invention.
Upon which patent rights can be claimed?
A patent right can be claimed on new inventions by the human intellect. It can be over utility models, industrial design, or even upon new plant variants.
Can Artificial Intelligence be a patent holder?
No, artificial intelligence cannot be a patent holder.
Case: Artificial Intelligence, Daubs (Created by Dr. Stephen Thaler, CEO of Imagination Engines)
In August 2019 applied for two patents for food containers and light alarms with Dabus as the inventor. The patents were applied in three places- European Patent Office, the United States Patent and Trademark Office, and the United Kingdom Intellectual Property Office. But all of them rejected the application on the ground that Artificial Intelligence is a system and it could not be identified as an inventor.
Trademark - A trademark is an indication applied to an article with a view to indicating to the public about the goods produced by the particular company.
There are various kinds of trademarks like, in the form of expression (verbal, figurative, sound, combined); in the form of number and subject (individual, collective); in the form of objects (brand). A trademark is not a result of creative work or intellectual activity, it has no moral rights. Only exclusive economic rights are here.
From the above discussion now we have a little bit of Idea about how Intellectual property is important to technologies. Let's specify the importance-
Data protection: Nowadays we can’t live without the internet and the internet is all about data. So, as soon as the data is generated there is a need to protect them from unauthorized use. All data on the internet is protected under Copyright.
Web design protection: A company’s Web Design is the identification of the company. It promotes a business online as the modern world brings progress in web commerce. Trademarks help the company to protect their business identity.
Software and website protection: Section 14(b) of the copyright act,1957 protects the rights of the original creators of computer software. A website can be protected under intellectual property law as copyright law protects original work.
Intellectual property prevents any unauthorized source to use any computer data, computer programs and any other information regarding this matter.
Ip law even protects the reputation of the person, who creates or invents something new.
It protects from the misuse of anyone’s invention.
IP Law in CyberSpace: Information technology is interlinked with Cyberspace. Intellectual property law plays a vital role in promoting e-commerce. So, to protect from cyber-crimes Information Technology has been created. The IT Act establishes legal frameworks to safeguard cyberspace based on UNCITRAL.
Loopholes under IP Law
Like every law, IP Law has its loopholes too.
Instead of being protected under Trademark Act there are so many duplicate products that are sold in the name of reputed companies (e.g.- Nike, Adidas, Puma etc.). The procedure is still unknown to people. That is why it cannot be stopped so easily.
Piracy, stealing software or any digital content is a crime under IP law, but still, we can see various incidents are happening like, copyrighted songs are being downloaded, copying the same stories in movies.
Paran Jai Jaliya re vs. Namaste London
In this case, the makers of Namaste London movie filed a case against the movie Paran Jai Jaliya re for copying the same story, which was an original copyrighted work. Later 75 lakhs were paid by the Paran Jai Jaliya re-team. Likewise, in the above case, there are many more original songs and movies that are being copied on a regular basis.
Information Technology and Intellectual Property are inter-relatable. In this growing society the world needs Information Technology, and to protect them from malpractices and unauthorized uses it needs Intellectual Property Rights law. Hence, Information Technology cannot be separated from Intellectual Property Rights.