COPYRIGHT ISSUES IN

RUJITHA SHENOY
ASSISTANT PROFESSOR OF
LAW
CYBER SPACE NATIONAL LAW
UNIVERSITY ODISHA
IPR AND CYBERSACE
Technological revolutions- the printing press, phonograms, radio and television
broadcasting, cable and satellite transmission, videocassette recorders, compact disc
(CD) and digital versatile disc (DVD) technology and, now, the Internet,
With the advancement and popularity of e-commerce and e-business, it has become
important for companies and organizations to protect their intellectual property
rights online.
Art, indigenous craft and artifacts, numerous museums and art galleries have
digitized their collections and made them available for viewing on the Internet.
small and medium sized enterprises have used the Internet in this way, as a
marketing tool to locate buyers for their products in a huge global marketplace.
IPR AND CYBERSPACE
databases of book, video and music titles, Travel sites and airline companies and
entertainment ticket sellers,
Right owner such as film and music creators, software developers, authors and
publishers, are now exploring ways in which to make their products available online,
while protecting their rights and recouping their investment.
Some are making new works of art, while others are expressing social commentary.
Some are paying tribute to a beloved artist or author. Some pirate for the sake of
profit.
Regardless of the facts, people who alter and re-transmit the works of others on the
Internet fall into the essence of copyright and trademark laws whose theories are
well-discovered, but whose parameters remain unchecked in the Internet.
CONTD..
The nature of the rights themselves, to control and exploit the products of one’s
creativity and innovation, remains relatively constant, the manner by which they are
expressed and exchanged is constantly adapting to developments in the underlying
technologies.
numerous journalists and aspiring writers have engaged in online publishing to post
‘blogs’, Web logs or journals, that allow individuals to make their views available to
the publicISING without the need for intermediation by large publishing houses or
distributors
CONTD..
Problem of protecting and detecting infringements of intellectual property in the
online area.
Intellectual property in cyberspace incorporate any unlicensed or unlawful use of
marks, service marks, trade names, images, music or literature, or sound.
Different kinds of infringements have come out as a result of a unique matrix of
cyberspace including deep hyperlinking, hyperlinking, meta-tags, and a lot more.
Nature of cyberspace being borderless. In cyberspace, jurisdiction is not an easy
subject, and many legal concepts and theories have developed over time to address
it, the most notable of which is the Minimum Contacts Test, Zippo Sliding Scale
Approach, and The Effects Test.
IPR INFRINGMENT IN CYBER
SPACE
DOMAIN NAME INFRINGMENT
COPYRIGHT INFRINGMENT
TRADEMARK INFRINGMENT
PATENT INFRINGMENT
ISP LIABILITY
hyperlinking, deep hyperlinking, framing, meta-tags, spamming, and violation of digital
copyrights
For example, A makes a homepage for his website, and on the homepage he places some
advertisements, from which he can make some money and it contains links to various subordinate
pages. Then, B creates his website, which contains links to A’s subordinate pages. This is called
deep linking. Because of this, the website visitors to B’s site will be able to gain access to A’s
material, without even visiting or seeing A’s advertisements.
COPYRIGHT INFRINGMENT

Copying original content

imitate the work of original content and slightly distort or tweak it until it is not recognized as the
original.
Re-transmitting and copying have various reasons like some are expressing social commentary, some
are making new works of art, or some raid for the sake of profit.
People who re-transmit the work of other people fall into trademark and copyright laws whose
theories are well known, but whose framework remains unchecked on the internet

Napster supplied software that allows users to exchange media files (MP3 files) saved on their
computers with other Napster users. The music firms have been seeking USD 1,000,000 for each
copyright-protected song downloaded through Napster since the case was filed. The parties reached
an agreement in which Napster agreed to provide the settling parties a third of all future income, and
Napster Inc. was shut down in 2000.
Inlining- is the process of displaying a graphic file on one website that originates at
another. In inlining, a web site user at a certain site can, without leaving that site, view
a particular video featured on some other site.
DEEP LINKING- For example, A makes a homepage for his website, and on the
homepage he places some advertisements, from which he can make some money and it
contains links to various subordinate pages. Then, B creates his website, which contains
links to A’s subordinate pages. This is called deep linking. Because of this, the website
visitors to B’s site will be able to gain access to A’s material, without even visiting or
seeing A’s advertisements.
Framing-Framing” is the process of allowing a user to view the contents of one website
while it is framed by information from another site.
PERFECT 10, INC. V. AMAZON.COM, INC., 508
F.3D 1146 (9TH CIR., 2007)

Perfect 10 sued for linking to websites displaying Perfect

10's images and, in the case of Google, displaying the
thumbnail images
As part of its image search service, Google also provides
thumbnail copies of the images that are being searched
for, so the user may see them before accessing the
website. Furthermore, when a user selects an image from
a Google search, a new page is accessed that includes the
original website as well as a frame that contains
information about the image and the thumbnail version of
FUTUREDONTICS, INC. V. APPLIED ANAGRAMICS, INC., ET
AL
CASE NO. CV 97-6991 ABC (MANX), 1998 U.S. DIST. LEXIS

Futuredontics, Inc. v. Applied Anagramics, Inc., et al

Case No. CV 97-6991 ABC (Manx), 1998 U.S. Dist. Lexis 2265 (C.D Cal. Jan.
30, 1998)
Defendant Applied Anagramics, Inc. (AAI”) operated a web site whose pages were
divided into frames. AAI created an unauthorized hyperlink to plaintiff
Futuredontics web site that made the copyrighted materials on Futuredontics web
site appear within one of the frames of AAIs site. The balance of the page was filled
with content supplied by the AAI, including its logo and information about its
business operations.
Futuredontics commenced suit, charging that such conduct constituted copyright
infringement.
CONTD..
Svensson v. Retriever Sverige AB, Case C 466/12 (13 February 2014)

How could a link to a newspaper article on the newspaper’s own website amount to copyright
infringement?
The plaintiffs, journalists who wrote the articles and licensed them to the newspaper, argued that a
link to a piece of content “communicates” that work “to the public.” Plaintiffs had authorized the
newspaper to publish their works, but had not authorized the defendant to link to them.
The court in Svensson reasoned that the link was not a communication “to the public,” because the
hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.”
that posting hyperlinks on a website to
The works freely available on another website does not constitute a ‘communication to the public’
as covered by that provision.
GS MEDIA BV V. SANOMA MEDIA NETHERLANDS BV AND
OTHERS (CASE C-160/15) CJEU
(2015)

The defendant, GS Media operated the website GeenStijl. GeenStijl it simply linked
to that material which was available at a website called Filefactory, in another
jurisdiction.

The fact of posting, on a website, a hyperlink to protected works, which are freely
available on another website without the consent of the copyright holder, constitutes
a ‘communication to the public’
CIVIL REMEDIES
Norwich Pharmacal Order: Orders of this kind are granted to determine relevant information from third parties
to support any evidence which is presented before the court by either the plaintiff or the defendant. These orders
are most commonly preferred when copyright infringement takes place online, which requires the disclosure of
the infringers from online service providers.
Mareva Injunction: It is an order in the form of an injunction which restrains defendant by freezing his assets
temporarily, thus preventing the defendant from removing his assets outside Anton Pillar Orders: Only made in
the most extreme of circumstances, this type of order is drastic and its effects are far reaching. Deriving its name
from the Court of Appeals decision;
Anton Piller AG v. Manufacturing Processes it has the following elements:
It can be an injunction which restrains the defendant from engaging with the infringed work or destroying them.
It can be an order that permits the plaintiff’s solicitors to enter the premises of the defendants, to search the same
and take any of the infringed goods into their safe custody. It can also be an order which directs the defendant to
disclose the names and addresses of any suppliers and/or customers who the defendant may have done any
business with using the infringed good and is directed to also file an affidavit the jurisdiction while pending
hearing.
TM INFRINGMENT IN
CYBERSPACE
E COMMERCE Internet consumers increasingly rely upon strong brand awareness
and brand performance for the confidence to engage in e-commerce.

Yahoo! Inc v. Akash Arora & Anr (1999 IIAD Delhi 229) the defendants were using
“yahooindia.com” for providing internet services. The petitioner here was the owner
of the trademark “Yahoo!” and had registered its domain name with different
countries like “yahoo.in” for India. Hence, the domain name “yahooindia.com”
could be mistaken as an extension of “Yahoo!”. The Court treated the matter as
passing off and granted an injunction restraining the defendant from using the
domain name “yahooindia.com”
CHALLENGES TO PROTECT IP
IN DIGITAL WORD
WIPO Internet Treaties, adapt the intellectual property laws to facilitate the
dissemination of protected material over the Internet.
Technological tools such as encryption and watermarking provide practical solutions
and, together with digital rights management initiatives, contribute to meeting this
concern.
Trademark owners expend vast resources, engaging automated ‘web crawling’
software and cyber surveillance firms, to monitor the billions of Web pages and
protect their intellectual property rights.
If you are not indexed by a search engine you simply do not exist. But in order to be
indexed and to achieve a good rating on any search engine, businesses have adopted
all kinds of ethical and unethical practices.
CONCLUSION
Development of e-commerce, protecting intellectual property is vital. Traditional
intellectual property protection regulations have been applied to cyberspace as well.
However, due to the fundamental structure of the internet, several important
challenges have arisen, including jurisdictional rules, recognizing hybrid kinds of
online infringements, and addressing conflict of laws issues that apply equally in
cyberspace.
Researchers have been advocating a combined approach for social, technological
and legal efforts and action to defend intellectual property infringements in
cyberspace. Infringement of intellectual property rights in cyberspace is a difficult
area to enforce legally
Oppedahl & Larson v. Advanced Concepts (D. Colo. Feb. 6, 1998), the law firm of
Oppedahl & Larson, owner of the domain name <patents.com>, filed a trademark
infringement action against three companies and the corresponding ISPs after
discovering that the companies inserted the words “Oppedahl” and “Larson” in the
keywords field of their web pages in order to draw traffic to their sites.
Trademark infringement occurs when companies include in their own websites meta
tags containing the names or descriptions of other companies. For example, Coca
Cola used the keyword “Pepsi” in its meta tags, now the web surfers who used
search engines in order to obtain information about Pepsi would be directed to Coca
Cola’s web site due to these meta tags.
DOMAIN NAME INFRINGMENT

In Google Inc. v. Mr. Racha Ravinder , the website in question was

“googlenetbiz(dot)com”. Google contended that the defendant's website was
confusingly similar to the Trademark Google, which was registered globally. It was
argued that the respondent had an ulterior motive in registering their website in order
to confuse web visitors, and that this breaches the Trademark because it is identical
to the worldwide Trademark ‘Google.' The panel ruling sided with the complainant
and ordered that the site be transferred to Google Inc.

Tata Sons Limited vs. Monu Kosuri & others , a renowned cyber squatter registered
several domain names containing the name “Tata”, a well-known brand name of the
Plaintiff. In this case internet domain name was considered to be more than internet
addresses and were entitled to trademark protection and also an ad interim injunction
was issued
TM INFRINGMENT
M/s DRS Logistics Pvt. Ltd. and Anr. v. Google India Pvt. Ltd. and Ors. The
plaintiff sought injunctions against Google India Private Limited, Google LLC, and
Just Dial Limited to restrain the defendants from permitting third parties to use the
plaintiff’s trademark as keywords or metatags on their search engines. It was alleged
that such use of third-party trademarks led to diversion of traffic from the trademark
owner’s webpage to that of its competitor; resulting in confusion and infringement
and/or passing off the trademark.
CASES ON COPYRIGHT
INFRINGMENT IN
CYBERSPACE
TicketMaster V. Microsoft , Microsoft was sued by TicketMaster because the
defendant had placed links on the plaintiff's homepage through its website "Seattle
Sidewalks." Microsoft was accused of misleading trade mark activities and dilution,
according to the plaintiff. The deep linking directed users to TicketMaster ordering
pages rather than the TicketMaster homepage, denying consumers access to the
plaintiff's advertising materials on the plaintiff's home page. Despite the fact that the
dispute was resolved between the two parties, the subject of Hyper-Linking and
other forms of intellectual property is becoming increasingly important.