Posted by: B Singh | September 29, 2008

The Cohesion of IP and Technology

Intellectual Property Rights (IPRs) in India consist of Copyright, Trade Marks, Patents, Designs, Plant Varieties, etc. The Information and Communication Technology (ICT) has also given IPRs in India a new meaning and shape. IPRs in the digital era require a totally different outlook and protection and the traditional methods are not effective for the same. IPRs issues in cyberspace bring with them certain additional rights and liabilities for both the owner as well as the person dealing with the same. IPRs issues in cyberspace must therefore be dealt with in a techno-legal manner rather than purely legal or purely technological manner.

The relationship between ICT and IPRs is not only direct but also cannot be ignored. This is so because use of ICT may enhance the value or diminish its value. The use of ICT may help in the enforcement of these IPRs through digital mechanisms and at the same time it may assist in the violation of the same. It is for us to decide and determine on which side this ICT should be. The IPRs issues in the digital era are not easy to handle. This is so because the nature of Internet provides the violator not only anonymity but also protection of a distinct and separate legal system where the laws of a particular country may not be applicable.

The use of ICT has posed certain challenges before the IPRs holders more particularly for Copyright and Trademark holders. This has encouraged western countries like USA to enact laws like Digital Millennium Copyright Act (DMCA) that provide digital protection to IPRs on the one hand and make the circumvention of these measures an offence on the other.

India is also planning to enact a law on the lines of DMCA. The same may not be fruitful if we fail to appreciate the ground realities existing in India. Merely superimposing foreign laws is not enough. We need to first analyse the situation in India in a holistic manner and then only should take steps towards the enactment of any law in this direction. India is still not ready for such an advanced law when its basic cyber law titled Information and Communication Technology Act, 2000 (IT Act, 2000) is in the infancy stage.

The situation is very tricky for Indian companies and individuals. They may find themselves in the clutches of law if they do not take proper precautions. The following strategies must be adopted by the companies/individuals for meeting various techno-legal requirements pertaining to IPRs protection in cyberspace:

(1) The companies must be cautious of the “liability clause” of various statutes. They must appoint an “officer in default” who must be responsible for managing cyber law and IP matters of companies.

(2) The web-site contracts made by the companies must be unambiguous and fair.

(3) The companies must restrict their liabilities under those contracts.

(4) The companies must adopt the well accepted standards of the contemporary practices.

(5) The privacy rights of the netizens should be properly safeguarded.

(6) Precautionary measures for the protection of valuable data, information, and trade secrets should be adopted.

(7) The companies must take care of IPRs violations of various segments.

(8) The companies must adopt sound advertisement policy.

(9) The companies must be very cautious while dealing with juveniles as they are protected by laws but not the companies.

(10) The companies must insure their business for uncertain risks, etc.

The IPRs issues in the digital era are also closely related to the requirements of Digital Preservation in India. With the rapid advancement of technology day by day, old applications and methods are becoming obsolete. We need to upgrade them from time to time. We also need to change form of various IPRs protected works from one form to another. This sometimes results in copyright, trademark, patents, etc violations. In short, IPRs issues in the digital era and cyber space are difficult to manage and we need both good policies and laws to manage the same effectively.

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