India: How Do Virtual Businesses Ensure Intellectual Property Protection?

Last Updated: 12 July 2019
Article by Debopriya Mukherjee

INTRODUCTION

Intellectual Property as we can derive from the term, is any asset that is the creation of human intellect. It is intangible in nature and every original creator of such property has the right to protect the same. This idea has facilitated the evolution of the Intellectual Property protection regime and laws.

While in case of tangible property the protection seems an easier task the same stringent protection for intangible creations is not that easy. Companies are meticulous about identifying and protecting intellectual property because of its tremendous value in the current knowledge-based economy.1 Extricating benefits from intellectual property and keeping others away from drawing similar benefits from the same Intellectual Property is a significant duty for any organization.

IP VIS- A-VIS IT

With the advancement of Information Technology the complications for providing protection have only increased, as any information which is virtual and computerized can easily be copied in the matter of a click and distributed in other networks. Computerized media is way different from physical media such as books, periodicals, in regards that it can be easily replicated, transmitted and altered, and the compactness of the same makes it easy to steal.

Before such technological advancements which the internet has caused over time and before its wide use, copies of books, films, songs, software etc. were stored in physical media, such as paper, computer disks, or video tapes, creating hurdles to distribution and making is less prone to theft. 2

The Internet allows people to blindly copy various forms of works available on the World Wide Web and then to distribute them nearly cost-free to all its users. Intellectual Property laws come into action to protect this free copying and distribution of any material available on the internet without any license from the original author or without paying them any consideration.

Another vital aspect which has become prevalent over the years is business over E-commerce websites. According to Merriam Webster3, E-Commerce refers to activities which are related to buying and selling real goods or services for real consideration, digitally over the internet. The protection of the Intellectual Property is neglected as people are unaware of the value IP bears in the protection of E-commerce businesses.

WHO OWNS THE IP RIGHTS IN YOUR WEBSITE?

A company's website is its biggest asset and a tool to promote its business for sales generation. The risk of the look and feel of a website getting copied is directly proportional to the increasing competition in the market of E- Commerce. The risk of being accused of unauthorized use of other people's intellectual assets also arises. A website generally comprises of several components designed and owned by different persons who created or designed those. It is not a necessity for an E- Commerce site to own exclusive rights in every component of the website but it is important to identify what it actually owns, what are the exclusive rights in regards to that, and most importantly how to safeguard those rights.

In most countries whenever the employees who are specially equipped and employed for development, develop the website then the right to enjoy exclusivity rests on the employer, unless it is otherwise agreed upon.

WHAT ELEMENTS IN A WEBSITE CAN BE PROTECTED AND HOW?

Intellectual Property Law has several heads which deals with providing protection to the different components that a website comprises of. The several components which could be protected by IP Laws can be categorically divided.4

E-commerce systems, search engines or other technical tools are important components and can be granted protection under Patents or the utility model.

However, the design of the website is the expression behind the idea of making the website and is protected under copyright law. In fact, the content that the website shows its user in the forms of written material, photographs, graphics, music and videos are protected under Copyrights. The important databases have two methods through which it can be protected. It can either be protected by copyright law or any sui generis database laws.

The Software which includes the text-based HTML code which is used in websites, is vested with a shield under Copyrights Act or Patents law, depending upon the national law where the website is functioning. Trademark laws protect the Business Names, Logos, Product names, domain names and other signs which are present in the website and is visible to the user. These components in the website are the main identifying factor of the website and demands stringent absolute protection.5

Computer generated Graphic Symbols, displays, graphic user interfaces & even webpages are protected under Industrial Design Law which is also a branch of IP laws. Hidden Aspects of a website like which are confidential in nature and the disclosure of which leads to the secrecy violation of the company are protected under Trade Secrets Law, generally made secured by NDAs etc. 6

Registration of these segregated components under the IP law which protects the same, is the best way to save your E-commerce website from falling prey to IP infringement suits. Many people assume that material on websites can be used freely. The next step would be to let everyone know and create awareness among the people about your IP rights and what you own in the website, being exclusive to you and your use and cannot be copied, used or distributed except your consent, license or assignment. 7

Using Trademarks, time stamps or water marks or disabling the right click of the website are the best ways to ensure that. Along with informing the viewers about your rights as an owner it is also important to let them know how far they can make the use of the content they are viewing by introduction of terms and conditions notice to the website.

CONCLUSION

As mentioned earlier E-Commerce is a rapidly growing industry. The owners of such websites have to face instances where the creation and invention of someone can be easily accessible without any sort of acknowledgement or consideration provided to the original creator. To avoid such circumstances Intellectual Property plays a vital role and also it makes online transactions in this business convenient and safer.8 Websites are common targets for infringement lawsuits. If you are not cautious enough, your IP rights can be lost and you can be liable for infringement of the IP rights of others. So, it is advisable to all thinking of starting an E-Commerce website to know about their rights and to be aware of what kind of protection to seek.

Footnotes

[1] Wipo, What is intellectual property?, WIPO, available at http://www.wipo.int/about-ip/en/

[2] How intellectual Property Relates to E-commerce : https://blog.ipleaders.in/intellectual-property-relates-to-e-commerce/

[3] Merriam Webster, Definition of E-Commerce For English Language Learners, available at http://www.merriam-webster.com/dictionary/e-commerce

[4] Wipo, What is intellectual property?, WIPO, available at http://www.wipo.int/about-ip/en/

[5] WIPO, Intellectual Property and E-Commerce: How to Take Care of Your Business'Website, http://www.wipo.int/export/sites/www/sme/en/documents/pdf/business_website.pdf

[6] ibid

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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