Table of Contents Hide
- TYPES OF IP APPLICABLE
- INDIAN IP LAWS
- SOCIAL MEDIA STAKEHOLDERS AND THEIR RIGHTS
- WHO HOLDS THE RIGHTS FOR IPRs CREATED
- WHAT ARE THE CHALLENGES
- WAY FORWARD
- LANDMARK JUDGEMENTS
ARE INDIAN IP LAWS GEARED UP FOR THE WORLD OF SOCIAL MEDIA
Social media are interactive digital channels which provide an internet-based form of communication to its users in the form of conversations ( texting ), sharing information ( uploading status or stories ) and web content creation ( making and uploading reels/videos and pictures ). In today’s world, they have become a medium for sharing one’s ideas and interests, expressing one’s individuality, building networks with people and staying in touch with friends and family. It is estimated that more than two third of internet users are active social media users too. It was not like this always, past years have seen a massive spurt in the use of social media. So how did this happen?
Social media was first introduced in the early 2000s.In 2004, Myspace became the first social media ever to reach a mark of about achieve monthly 10 lakh users worldwide while six degrees introduced in 1997 became the first social media site ever followed by moveon.org in 1998, Livejournal in 1990 which introduced blogs which is also a form of digital social communication, Lunar storm in 2000, Friendster in 2002 but failed to attract much of the internet users leading to its shutdown. In 2003, LinkedIn appeared which was definitely a hit with about 830 million members and over 82 million users in India itself. . In 2004 , world also saw a major giant Facebook coming into the picture . At first myspace dominated the market but over time Facebook took over and become a social giant which still dominates the social media market around the globe. In 2005 , world came face to face with YouTube which was a video sharing platform and Reddit which was a content rating social media site which instantly become popular among the youth and are still doing great. At present YouTube is the second most visited website after google search. It presently has about 2.6 billion active users around the world and 467 million users in India and Reddit has 430 million monthly users across the world and about 3.57 million Indian users who are popularly known as redditors .Twitter was launched in 2006 , as a microblogging site with about 330 million active users around the globe and 17.5 million users in India . In 2010 , Instagram was launched and well rest is history it is a massive giant acquiring about 1 billion active users and 230.25 million users in India , it is the most used social media platform among Indian youth. Though it wasn’t so popular earlier it was only in 2018 when we saw its dominance in social media market . Snapchat came into world domain in 2011 for which first time ever introducing the concept of serialized short videos and filters which attract a major market. It has about 319 million users across the world and about 144.35 million users in India. Google also tried a hand in 2012 by introducing Google+ but was shut down in 2018 after a data security breach due to which more than 5,00,000 users’ personal information came into the public forefront. In 2016 TikTok was introduced which allowed users to share short videos it became instantly popular among youth and has 755 million users worldwide but was banned by the Indian government in virtue of China- India tensions in 2020. Clubhouse and Bereal are the latest social media platforms introduced in 2020 which are slowly getting popular among the masses. Social media has now become popular among the masses like never before as it is a source of entertainment, fall in prices of smartphones, easy access of internet, networking, global exposure , COVID 19 pandemic etc.
TYPES OF IP APPLICABLE
Intellectual property is an intangible property which is a result of the human intellect which is safeguarded by the law from unauthorised use by others. Patents, industrial designs, domain names, trademarks, logos etc. are examples of intellectual prop. The 4 main types of intellectual property are patents, trademarks, copyrights and trade secrets.
Copyrights also known as author’s rights are a type of intellectual property that protects the original work of authorships like literacy and artistic works. Works covered are books, music, advertisements, films etc. Copyrights safeguard the original expression of an idea but not the idea itself. They protect a work only for a limited time period, according to the general rule copyright lasts only for 60 years, these 60 years begin from the date of publication of publications written under a false name, works published after the death of the creator or anonymous publications, cinematograph, films, sound recordings, photographs, work of government and work of international organisations while in case of original literacy work, dramatic, musical or artistic works the period of 60 years begin from the next year of the author’s death. In India, copyright protects 3 classes of works namely
- Original literacy, dramatic, musical and artistic works -: An artistic includes a painting, sculpture, a drawing ( even diagram, chart, map or plan), an engraving or a photograph, a work of architecture or any other work of artistic craftsmanship while if a work is in the field of music and the representation of such music is through the use of visual symbols outside the realm of traditional music but does not include a word to be sung, spoken or performed with music is called musical work. However, it is a prerequisite that a musical work should be written down in order to avail copyright protection.
- Cinematograph films -:Cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.
- Sound recordings -: A recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced is called sound recordings. A phonogram and a CD-ROM are sound recordings.
A symbol, word or words which are legally registered and established for representing a company or a product are called trademarks. It is a type of intellectual property which differentiates a company from others through a recognisable and unique sign or expression. A trademark owner can be any legal entity, organisation or business. The main objective of a trademark is to enable the consumers to identify a specific company or a product and distinguish it from its competitors. It enables a product or a company to build its own name. Protection against a trademark usually lasts for about 10 years but it can be varied, although it can be renewed for an unlimited or unspecified time by paying additional fees. There are almost limitless possibilities for a trademark, various types of trademarks are as follows -:
- Product mark -: As the name suggests it is a mark that is used on a product. It plays an important role in acknowledging the existence of a product and maintaining the reputation of a business. It is used only on one product. . Trademark applications for service mark are filed under class 1-34
- Service mark -: This mark is a type of trademark which uses logos or brand names to represent a service provider Hawaiian airlines, google and FedEx are examples of service marks. Trademark applications for service mark are filed under classes 35-45.
- Collective mark -: It is a mark owned by organisations which are used by its members to show membership or differentiate products and services to the public. This mark is used by a group of people collectively to protect a good or service. An association, public institution or section 8 company can be a collective mark holder. All members of the collective group are owners of a collective mark and not any single person.
- Certification mark -: It is a sign that stands for a product’s origin, material, quality or other specific details which are issued by the owner of a business or holder of a property. It brings out the quality and worth of a product to its customers. It also showcases that a product has undergone certain tests which ensure its quality thus a product’s expected standards are maintained. BIS Hallmark, AGMAR and ISI Mark are examples of certification marks.
- Shape mark -:It is a trademark that provides protection for the shape of products. Any distinctive shape of a particular product , its packaging or any three-dimensional objects which are capable of being represented graphically can get a shape trademark. Examples are Coca-Cola bottle , Lego etc.
- Sound mark -: It is a type of trademark that is given to sound connected with a product or service which is the original creation of a certain brand, product or company. The main objective behind a sound trademark is easy identification of the service , product or shows that are associated with the sound. Examples are Looney toons theme sound , Britannia’s 4 note bell sound etc.
INDIAN IP LAWS
Due to the emerging technology we all could evidently see the emergence of intellectual property. Intellectual property rights are legal rights held by creators or inventors to safeguard their work of creation or invention for a certain period of time. The laws governing intellectual properties are called intellectual property laws, they protect and enforce the rights of a creator, company or organisation for safeguarding inventions, designs, lyrics etc. The main aim of intellectual property rights is to encourage new creations including artwork, technology and inventions that may increase economic growth. The areas which fall under intellectual property law governance are trademarks, patents, copyrights, industrial designs, geographical indications, layout designs of an integrated circuit, varieties of plants, information technology, cyber crimes and data protection. Trade-related aspects of intellectual property rights ( TRIPS) is an agreement which empowers its members to provide enlarged protection of intellectual property rights if needed. This agreement plays a crucial role in supporting adequate protection of IPRs and measures and procedures for enforcing IPRs.
In India, copyrights are governed by the copyright act 1957 which safeguards the original literary, dramatic, musical, artistic works, cinematography films and sound recordings from any unofficial use or to be used without any official permission or approval by the rightful owner. It doesn’t apply any restriction on the use of an idea and protects the mere expression of the idea. It empowers the author with 2 kinds of rights.
- Economic rights of the author -: Section 14 of the copyright act 1957 talks about the economic rights of the author. Literary, dramatic, musical work and computer programs are the main areas where author exercises their economic rights. It gives the author all due right to decide the usage, storage, reproduction of his /her work and communication to the public about the same. In the case of sound recordings and cinematography films, the author decides to make any translation or adaptation of the work.
- Moral rights of the author -: Section 57 of the copyright act 1957 talks about the moral rights of the author. It includes 2 rights of the author that are right of paternity and the right of integrity. The right of paternity is the right of the author to claim authorship over his work i.e. right to be identified as the author or director of his work. The right of integrity allows the author to prevent or claim damages in case of any distortion, mutilation, modification or any other unexpected act done which is harmful or damaging to his work.
The unauthorised use of an original work which is protected by copyright is called copyright infringement. The copyright act 1957, provides 3 kinds of remedies against copyright infringement in India which are administrative remedies, civil remedies and criminal remedies. Under the administrative remedies, the custom authorities are entitled to detain infringing goods. Section 55 of the copyrights act 1957 talks about the civil remedies provided under the act which include injunctions, damages and accounts of profits. For the infringement of copyright criminal remedies are imprisonment given at least 6 months and up to 3 years, a fine extending up to Rs. 2,00,000, search and detention of infringed goods and delivery of infringing goods to the copyright owner .
India came up with the Indian trade mark law in 1940, prior to it there were no established laws for redressal for registered and unregistered trademark infringement they were settled under section 54 of the specific relief act 1877 and judgement was passed on the matters under Indian registration act 1908. In order to provide stricter laws, and regulations and provide protection against trademark infringement, Trademark And Merchandise Act 1958 was introduced which totally replaced The India Trademark Law. This act enabled the owner to register the trademark and get a legal right for its exclusive use. The Trademark Act 1999 defines infringement and talks about the consequences of infringement. It now gives more time to the owners of trademarks to register their traditional and non-traditional trademarks.
SOCIAL MEDIA STAKEHOLDERS AND THEIR RIGHTS
A content creator is a person who creates entertaining or educational content on social media platforms such as Instagram, Facebook, YouTube etc. for the viewers in the forms of videos, reels, pictures, blogs or articles. Content creation is a booming industry and so the rights of content creators should be protected in order to avoid its unauthorised use. Copyright law allows the content creators to get their original work copyrighted and set their exclusive rights on the same. They can control the usage of their work online and have a right to duplicate it or sell or hire or offer to sell or hire their work. Content creators enjoy both the economic and moral rights of an author in case of copyright laws as mentioned above.
Other things which content creators can do to protect their work are as follows -:
- One can add © symbol and mention their name on their work.
- One can use digital watermarks provided with the trademark or tradename of the creator’s handle
- One can provide their contact info in case they want to sell or hire their work
- One should include the phrase “ all rights reserved “ on their work.
A person who has a huge audience watching their content and who have established trust and believe in them and are capable of influencing and can persuade them to act on their guidance are called influencers. Intellectual property rights of online influencers are in two domains namely copyright and trademark. To get legal ownership of their original work and avoid its unauthorised use influencers can register for copyright. Secondly, influencers who earn revenue online via online marketing can register for a trademark in order to safeguard the identity of a brand. Influencers can get trademarks for their Instagram handles, YouTube channels, their usernames on various social media platforms and their brand logos.
A marketing agency is an entity which provides services with respect to planning, design and execution of marketing activities of a product or a service. When marketing agencies are creating content for an advertisement some types of Intellectual property rights come into action such as -:
- Creative content displayed in the form of photos, audio, video, dialogues etc can be safeguarded by copyright
- Logos, sounds, product name being advertised etc. can be safeguarded by trademarks.
- Screen displays, web pages, graphic user interfaces and graphic symbols can be safeguarded by Industrial design protection
- One can take patent protection for a few forms of advertising techniques or means of doing business.
People who use social media either for content creation or academic or entertainment purposes are termed social media users. Social media users are entitled to the right to privacy. Social media platforms can’t share any user’s personal information in the public domain. The Information Technology Act 2000 with all aspects related to privacy in cyberspace. Section 43A of I.T. makes it mandatory for any entity that holds any user’s sensitive or personal information needs to maintain reasonable security of the information. In case this duty is breached and there is a wrongful gain or wrongful loss to a person the entity is entitled to pay damages to affected person.
WHO HOLDS THE RIGHTS FOR IPRs CREATED
A patent is a type of intellectual property which empowers the owner with an exclusive right granted to him for an invention for a limited period of time . The owner has the right to keep out others from making , using or selling the invention . Processes , machines , medicines , computer programs etc. can be patented . The patent owner is the owner of patent and have exclusive right on the same.
The company or person that uses the trademark is the rightful owner of trademark and holds the rights for the same .
The author of the copyrighted work is the owner of the work and holds the rights for the same .
The process of applying a specific design to physical products which are to be manufactured in large numbers is called industrial design. The first owner of the design is its author and has all exclusive rights on it.
WHAT ARE THE CHALLENGES
There is no doubt that India has laws covering the rights of almost all types of intellectual properties, their registration and their procedures. Many developments and amendments have been made with respect to Intellectual property laws in order to reform and regulate the IP industry but unfortunately, we are still not able to match all sorts of requirements and redressal mechanisms to effectively implement IPRs rules and regulations and safeguard all rights and interests of intellectual property holders. We are yet to take all required steps to resolve IP issues and promote creativity and originality in work. Violations of IPRs and intellectual property infringement have become way too common due to poor enforcement of rights and waiting for a long period of time to avail justice. The long duration of court cases is a sore point of MNCs, especially in areas of pharmaceuticals and agriculture. Under the provision of compulsory licensing, a patent can be forced by the government or can grant the right to another person to produce an essential drug in case of an emergency. Another serious issue is in Section 3(d) of the Indian Patent Act. This section prevents large pharma companies to retain the patent of the medicine forever by making minor changes in the earliest patent. Also, the IPR protection given in agriculture is not adequate. Subsidies such as minimum support prices for agricultural produce, subsidies for fertilizers etc. provided to farmers have been eliminated under the TRIPs agreement. Farmers oppose patenting of seeds by MNCs. Also even after modernisation, many farmers practice traditional knowledge, product and procedures for farming and sadly they can’t be patented .
Intellectual property laws play a vital role in regulating intellectual properties but are still not well enforced in our nation. Our country has now shifted to a product patent regime from a process patent regime. But there are still miles to go in order to properly enforce intellectual property laws and rights. In order to move forward from where we are now, we are required to successfully implement the TRIPs agreement. Its effective implementation can actively encourage innovation, transfer of technology and foreign direct investments. The next step should be to promote patent literacy among the masses and make them aware of rules, regulations and their rights. Patent offices must gradually develop a regulatory environment which is instrumental in technological innovations. Other steps that can be taken are -:
- Formulating IPR policies which cover all aspects of intellectual properties and their violation consequences for various sectors and academic institutions.
- Upskill people employed in organisations to effectively handle IPR.
- Provision of access to Patent information databases
- A consortium can be made for IPR professionals to offer their services.
With effective implementation of the above suggestions could be a game changer for intellectual property laws in our country .
Courts have played a vital role in developing intellectual property laws in our country through judgements. Some of the landmark judgements on intellectual property laws are as follows -:
Novartis AG v/s Union Of India
An application was filed by Novartis International AG as per TRIPS agreement before Chennai patent office for the grant of an patent for a drug named “ Glivec “which is used to cure chronic Myeloid Leukemia and gastrointerstinal stromal tumours (GIST) and the same was rejected on the grounds that the new form of drug does not show any changes in effectiveness from its pre existing form and same was patented in other foreign nations. Novartis challenged court’s decision and filed special leave petition before the Supreme Court of India.
The Supreme Court Of India refused to give patent to Novartis AG by stating that incase of medicines , efficacy means therapeutic efficacy “ and the new form of substance of medicine made my Novartis AG may be beneficial for some patients but it does not meet the standards to get patented .Also increase in therapeutic efficacy must be proven by the patent applicants through a research data in vivo in animals. Supreme Court Of India also held that prevention of the evergreening of a patent is the real motive behind section 3(d) however it does not prevents all inventions , it is in the case of medicines especially life saving drugs and if a invention fails to fulfil the same it cannot be granted patent.
ISKCON v/s Isckon Apparel Pvt. Ltd.
ISKCON ( International Society For Krishna Consciousness ) filed a case against ISKCON Apparel Pvt. Ltd. At the Bombay High Court for infringement of trademark. The company had a good reputation and goodwill in the market and the same was used by the defendant company and deceived the customers to believe that the defendant’s brand is associated with the plaintiff’s brand. The defendant then changed its name to Alcis Sports Pvt Ltd. From ISKON Apparel Pvt. Ltd. But used the expression formerly Iskcon Pvt. Ltd. on its website and there was a wide usage of the word ISKCON. The court held that the defendant ISKCON has infringed the trademark and has used its name unlawfully as well, misleading the customers and hampering their goodwill. Since they have already changed their name, no action would be taken against the same but have to discontinue their expression “ formerly Iskcon Pvt. Ltd.” With immediate effect.
Yahoo! Inc v/s Akash Arora
Yahoo Inc filed a complaint against Akash Arora. The defendant started offering internet services like that Yahoo.com and copied their domain name. The domain name used by them was Yahoo India. Furthermore, even the registered trademark of Yahoo was infringed. The court held that defendant’s domain name and trademark is identical to that of the plaintiff in every possible way as Yahoo India is very much capable to make internet users believe Yahoo India is a corollary or is the same as Yahoo ! . The High Court also held that any trade mark or service mark serves the same purpose as that of domain names on the internet by business groups.
Social media has revolutionised and reformed end number of things in our lives . The way one socialises to how a person advertise or market one’s product or services. Not even teenager , Even the brands have social media handles even they clearly understand its importance as a powerful tool and its widespread usage is a clear sign of its popularity . Admist such widespread popularity and widespread usage same needs to be monitored .Unregulated social media and intellectual properties can curb creativeness , promote deceiveness among people and can even be proven harmful for interests of all social media users. Thus , we require very extensive intellectual property laws and policies and their effective implementation becomes more crucial. Indian Intellectual property laws are still miles to go in their implementation . We still lack infrastructure and long duration of court cases definitely discourage people to go for court cases. Many cases are even compromised due to long litigations .Late done is always better than never done , we can achieve everything we aspire for in order to safeguard internet user’s interests with bit changes and amendments in court procedures and laws and then we could proudly say that Indian IP laws are geared up for the world of social media.