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 FAQ-3 (IPR issues in Cyber Space)

1

Cyber Space has emerged as a medium of communication. It is used by authors who write some times exclusively on the web or adapt their paper based publication in electronic form. To that extent Cyber Space is a publication medium. Hence there is an interplay of copyright law on web publications. Similarly, the trade mark law has an interplay with the registration of domain names. Patents of web based scripts or utilities also have an interplay of patent laws. Hence part of the Cyber Laws overlap with IPR laws.

In the copyright law there is already an attempt to frame special laws such as the "Digital Millennium Copyright Law" in USA. In India some changes have already been brought into the existing Copyright Law and further amendments are being proposed to add more provisions that directly relate to Electronic Documents. There is perhaps a need for a separate "Domain Name Law" which is today dependent completely on Trade mark law. In the patent regime, software patents are not recognized in India and hence it may be premature to discuss patents on web utilities. However specific laws for Patents on web based software may be useful to the community.

ITA 2000 did not attempt to directly cover any IPR related issues. However any infringement of copyright or web based software patent could be considered as an offence under Section 66 as "Diminishing the value of information". Correspondingly, Section 43 could also be invoked. 

In ITA 2008, a specific mention has been made under section 81 of ITA 2008, that ..

"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970". (Sec 81 ITA 2008)

This indicates that the person having rights under Copyright Act or Patent Act may exercise them. But it does not prohibit him from invoking ITA 2008 to seek a remedy. Hence there could be instances where remedies can be sought under ITA 2008 for losses suffered by a person on account of misuse of electronic documents though they may appear to also attract Copyright or other IPR laws.

The nature of "Domain Name Right" in law is not fully settled and is open for debate.

It is a right created out of a contract between the registrant and the registrar entitling the registrant to link the domain name to a server of choice of the registrant. When the registrant hosts contents in a website and links the domain name to the server where the content resides, the domain name acquires the nature of an identifier to the content space.

Over the years, by practice, domain name is being considered as similar to Intellectual Property right since there may be a "Creative" element in structuring of the domain name. Domain Name disputes are also resolved taking into consideration the "Trademark Rights" in physical space available to a domain name registrant.

If Domain Name conveys Intellectual Property, then there is no logic for domain name registration to be available to some body else if the name is not renewed.

Rights on "Abandoned" domain names need to be specified just as "Copyright" being placed in public domain. Similarly, "Fair Use" and "Assignment Rights" also need to be recognized. Without all these characteristics, Domain Name fails the test of an IPR.

Hence "Domain Name" is not strictly an IPR right though it has some characteristics of an IPR.

In terms of Cyber Jurisprudence there is a need to identify the exact nature of the "Domain Name Right". If there is any law for "Virtual Trade Mark" which is independent of the "Physical World Trade Mark", it may be possible to define appropriate rights for the owners of Domain Names.

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