June 15, 2021

Protection of Intellectual Property Rights in Cyberspace- Comparative Analysis between India & USA

Introduction: –

With the growing use of computer systems and the internet and growing trend towards ecommerce, the need for intellectual property has grown significantly. Even with greater advancements in technology, there is a downside to this trend which is coupled with increase in dependence on information and communication technology, internet where there is difficulty in detection and protection of intellectual property infringements in the cyber space[1]. The infringement of intellectual property rights occurs in the online medium more often because of the ease in access, copying and transferability together with the anonymity present within the cyberspace. The major question is how one protects their intellectual property and prevent unauthorized access to it in the online platform.

Protection of Intellectual Property- India vis-à-vis USA: –

Unlinked or unauthorized use of trade names, trademarks, images, copyrights, services marks, and music constitute to infringement of intellectual property in the cyberspace. The uniqueness in the matrix of cyberspace has brought out diverse classifications of infringement that include framing, hyper linking, digital copyrights violations, meta tags, deep hyper linking spamming, among others.[2]

In the US over forty million jobs are powered by intellectual property intensive sectors. They account for more that 34.8% of GDP. Contrary to India the United States government has been steadfast in taking up measures in enhancing the intellectual property by issuing executive orders and recommendations. Back in 2011, the America Invents Act was signed with a view of helping the US patent system become more reliable and efficient[3]. Moreover, there were additional efforts made in improving IP enforcements effort through establishment of two IP enforcement advisory committees.

On the other hand, Indian government is a signatory of many international trade agreements that have aimed at taking steps towards having a strong IP by enacting legislation for protection of intellectual property rights. As such India has constantly made encouraging remarks on the need to introduce a strengthened intellectual property environment in the cyberspace and different industrial sectors. However, India are still ranked lower in the Global Intellectual Property Centre which measures the general performance on intellectual protection and environment[4].

India is way below when it comes to patent filings. The patents right is an invention. This means that whoevers skill or labour was used introducing an idea in terms of formulation of a new process, manufacturer r instrument has that idea as their own in law.[5] Therefore, they are entitles to utilize it and draw profit from it. Unlike the case in the United States, there is lack of sufficient economic encouragement of IP in India. Furthermore, there are few incentives that are used to encourage innovation.

Unlike the United States, there are challenges that surround the validity of the patent in India. The patentability and compulsory licensing criteria used in India have often come under sharp criticism. While some provisions in the law are set to improve the patentability with an aim of protecting the genuine innovations, other provisions may limit these efforts. Section 13(4) under Patent Act in India asserts that it does not automatically ensure one’s invention is valid having been granted a patent. The ambiguity in the law is one of the limiting factors in the intellectual protection in India[6].

In the USA, the process of being granted a patent is much easier as one is required to go through few filters before being validated. The Indian procedure is mugged with delays in the judicial process, they work against the inventor and undermine the legal and technical checks provided in the pre and post grant processes.

The comparability between the United States and India shows that India remains to be one of the most difficult economies in the enforcement and protection of intellectual property in the cyberspace.[7] There are still major concerns that surround the copy rights laws that do not incentivize the creation and trade framework that is outdated in the cyber space. India lacks the proper legal framework that can enhance the protection of intellectual property compared to the United States. The lack of proper privacy legislation has created a lot of difficulty in ensuring protection of privacy rights[8].

In the different constitutional acts such as IT Act 2007, Indian Penal Code, Indian Copy Right Act 2010, Consumer Protection Act 1986, there are ambiguous provisions that limit the protection of intellectual property in India. The acts lack classification of information as to whether it is private, public, or sensitive information. Also, there is no legal framework that discusses the ownership of private or sensitive data and information. Furthermore, there are not specific procedures that have been outlined that for creation, processing, and transmission of stored information.[9] There is lack of a clear guideline that defines that proportionality, data quality and data transparency.

In an era that is filled with information technology the loopholes within the Indian legal framework responsible for protection of intellectual property can lead to severe impairment of not only individuals but also the nation.

Contrary to India there have been frantic efforts that have been made to mitigate the risk in intellectual property in the United States. Trademark law present in the US has not only protected the traditional trademarks but has been influential in shaping up the appearance of the trademarks. The copyrights laws have been strengthened hand offer better protection for literary matter, sound recordings, and cinematography among other forms of new and original artwork in the cyberspace. There have been several theories that have advocated for the protection of intellectual property rights.

The mots outstanding one is that the initiative of the creators needs to be rewarded and protected as this will enhance creativity.[10] The role of national legislation plays a critical role in strengthening the intellectual property rights. However, the role of treaties has also played a significant role in harmonizing the protection of intellectual property rights across the globe[11]. India has been constantly coerced by the US to join the Singapore treaty which aims at improving the inefficiencies in the protection of IP rights in India.

Conclusion: –

Compared to US, India continues to be faced with major challenges including piracy. Trademark violation as also been a crucial issue of intellectual property rights infringement in India. Furthermore, there is less privacy and security over personal data compared to the US. There is more that needs to be done to reduce the differences in intellectual property between the two countries. India needs to develop and enforce local legislations as recommended by GIPC to address the many challenges in cyberspace including online piracy and goods counterfeiting. Furthermore, there should be more enforcement through criminal penalties and penalties.

References

[1] Peng, Mike W., David Ahlstrom, Shawn M. Carraher, and Weilei Stone Shi, “History and the debate over intellectual property“, Management and Organization Review 13, available at https://www.res earchgate.net/publication/315807746_History_and_the_Debate_Over_Intellectual_Property.

[2] Jajpura, Lalit, Bhupinder Singh, and Rajkishore Nayak, “An introduction to intellectual property rights and their importance in Indian Context“, (2017), available at http://docs.manupatra.in/newsline/articles/Upload/41C26FED-7AFE-40EA-8736-4E6C516917AE.pdf.

[3] Supra note 1.

[4] Keswani, Chetan, Kartikay Bisen, S. P. Singh, and H. B. Singh, “Traditional knowledge and medicinal plants of India in intellectual property landscape”, available at https://www.researchgate.net/publication/315489276_Traditio nal_knowledge_and_medicinal_plants_of_India_in_intellectual_property_landscape.

[5] Supra note 4.

[6] Chowbe, Vijaykumar, “Intellectual Property and its Protection in Cyberspace”, available at https://www.researchg ate.net/publication/228173798_Intellectual_Property_and_Its_Protection_in_Cyberspace.

[7] Ibid.

[8] Shabalala, Dalindyebo Bafana, “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes”, available at https://papers.ssrn.com/sol3/papers.cfm ?abstract_id=3238342.

[9] Supra note 2.

[10] Supra note 6.

[11] Geiger, Christophe, CH”The TTIP and Its Investment Protection: Will the EU Still Be Able to Regulate Intellectual Property?”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256905.


Author Details: Prachi Shah

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