THE CHALLENGES OF PROTECTING INTELLECTUAL PROPERTY IN THE CLOUD COMPUTING ERA

This article is written by Pratham Bharat Patel of 2^nd Semester of KES JP Law College, an intern under Legal Vidhiya

ABSTRACT

Protecting intellectual property (IP) involves safeguarding creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. The types of Intellectual property patents, trademarks, copyrights, and trade secrets. Effective IP protection requires registration with relevant governmental bodies, active enforcement through legal means, comprehensive legislation, technological measures like Digital Rights Management (DRM), and education to raise awareness about IP rights. However, the digital age presents significant challenges, including online piracy, rapid technological advancements, globalization, lack of public awareness, and institutional limitations. Addressing these challenges necessitates a combination of legal frameworks, technological tools, enforcement mechanisms, and public education to ensure creators can benefit from their innovations and contributions in an evolving technological landscape.

Keywords

digital age, digital platforms, digital rights management

INTRODUCTION

‘Intellectual property’ is a term a legal protection granted to creators and inventors over there intellectual creations. Under intellectual property rights law, owners are granted certain rights to variety of intangible assets, such as music, literry and artistic works, discoveries and inventions, and, phrases words, symbols and design

According to World Intellectual Property Organisation (WIPO), Intellectual property rights are like any other property rights. which allows the creators of, trademarks patent or copyright works to have a benefit from their own work or investment in a creation. As per Article 2(VII) of convention World Intellectual Property Organisation (WIPO) ‘Intellectual Property’ shall include the rights relating to:[1]

• Literary, artistic and scientific works
• Performance of artists, phonograms and broadcasts
• Inventions in all field of human attempt
• Scientific discoveries
• Industrial designs
• service marks and commercial names, designations
• Protection against unfair competition.

HISTORICAL BACKGROUND

Intellectual property (IP) has a long history, starting in northern Italy. In 1474, a Venetian law provided the first patent protection for inventions. Around the same time, Johannes Gutenberg invented the printing press, leading to the first copyright system. By the late 1800s, industrial growth and stronger governments led to modern IP laws. International treaties like the Paris Convention (1883) and the Berne Convention (1886) helped protect inventions and creative works globally.

Today, ideas and knowledge are key to trade. The value of high-tech products, medicines, and creative works comes from their design, research, and innovation. IP rights let creators control and profit from their inventions and designs. This includes things like films, music, books, software, and online services. The World Intellectual Property Organization (WIPO) in 1967 listed many types of IP protection, such as for artistic works, performances, inventions, designs, trademarks, and unfair competition.

In 1995, the World Trade Organization (WTO) introduced the TRIPS Agreement, the most comprehensive IP agreement. TRIPS covers copyright, trademarks, geographical indications, industrial designs, patents, integrated circuit designs, and trade secrets. It sets global standards for protecting and enforcing IP rights, aiming to encourage innovation and economic growth by ensuring creators and inventors are rewarded for their work

TYPES OF INTELLECTUAL PROPERTY

Intellectual Property is divided into two categories:

INDUSTRIAL PROPERTY:   

• TRADEMARKS,
• PATENTS,
• INDUSTRIAL DESIGNS, AND
• GEOGRAPHIC INDICATIONS OF SOURCE

1. PATENTS: Patent is derive from Latin term which means which means (to make available for public inspection).patent grant property rights on an invention, allows the patent holder to exclude others from making, selling, or using the invention. Inventions allow many businesses to be successful because they develop new or better processes or products that could offer competitive advantage on the marketplace. A person could get a patent just by filing a patent application with patent office in India.

Example: The pharmaceutical company Pfizer patented the drug Viagra, which treats erectile dysfunction. This patent prevents other companies from producing and selling generic versions of the drug until the patent expires.

2. TRADEMARK: A trademark is word, phrase, symbol or design that distinguishes the source of product or services of one business from its competitors. One can acquire the trademark by registration with trademark office under Trademark Act 1999.

Example:

• Coca-Cola’s brand name and its script logo are trademarked, ensuring that only Coca-Cola can use these identifiers to sell its beverages.
• Nike “Swoosh” logo. This logo is a trademark that identifies products made by Nike. Other companies cannot use a similar logo on their products, which helps consumers distinguish Nike products from others.

3. COPYRIGHT: it protects original works of authorship, such as literary, musical, and artistic works. Copyright grants creator rights to reproduce, distribute, perform, display, and license the work. Copyright is governed by Copyright Act 1957. Copyright lasts for 60 years.

Example: J.K. Rowling’s “Harry Potter” series. The books, as well as the movies, are protected by copyright, which means that others cannot reproduce, distribute, or create derivative works based on these without permission.

4. INDUSTRIAL DESIGNS: Industrial design protection helps companies distinguish their products from those of competitors, adding value through unique aesthetics. Attractive designs can significantly influence consumer purchasing decisions, making design protection crucial for business success. Protecting industrial designs helps maintain a brand’s identity and reputation, ensuring that consumers can identify genuine products.

Example: Apple iPhone:

Apple iPhone design is protected under industrial design rights. This protection covers the phone’s unique shape, the arrangement of its features, and the overall look, preventing other manufacturers from making similar-looking devices.

5. GEOGRAPHICAL INDICATION: section 2 (e) of geographical indications of goods (registration and protection) act,1999. Geographical indication in relation to goods means indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating or manufactured in territory of country or a region or locality in that territory, where given quality reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either production or processing or preparation of goods concerned takes place in such territory, region or locality.[2]

Example: Parmigiano-Reggiano cheese. The cheese only be called Parmigiano-Reggiano if it has been produced in regions of Italy using certain methods.

GOVERNING LAWS OF INTELLECTUAL PROPERTY RIGHTS IN INDIA

1. Patent Right– governed by the Patents act,1970 (amendment- patents (amendment)           Rules, 2005)
2. Designs– governed by designs act, 2000
3. Trademark– governed by the Trademark act, 1999
4. Copyright– governed by the copyright act,1957 (copyright (amendment) act 2012).
5. Geographical indications– governed by the geographical indications of goods (registration and protection) act, 1999.

INTERNATIONAL REGIME ON INTELLECTUAL PROPERTY

Paris Convention (1883)

The treaty was adopted in march 20, 1883. One of the first treaties aimed to protect industrial property, including patent, trademark and industrial design. Paris convention was first step for protection of intellectual property. Only 11 countries agree to participate when the treaty was initially signed. now there are 176 countries which are signatories to the treaty.[3]

Berne Convention (1886)

Berne convention adopted on 1886 which deals with protection of work and rights of authors. It provides creators like authors, painters, poets, musicians, etc. to control how their creativity is used, by whom and on what terms it is used. total members of berne convention are 179 member states. [4]

WIPO Copyright Treaty (1996)

The WIPO Copyright Treaty (WCT) was established on 1996 an agreement under berne convention it deals with protection of works of author in digital era.

Exclusive rights has been provided in this treaty such as reproduction rights, distribution rights to authorize the distribution of their works for sale to public, rental rights, etc. the WCT is significant because it extends traditional copyright protections to the digital realm, ensuring that authors and creators maintain control over their works in an online environment. India is the member of this organisation joined in year 1975.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994)

 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes global standards for protecting intellectual property (IP) rights such as patents, copyrights, and trademarks. Negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994 and is administered by the World Trade Organization. While not tailored specifically to cloud computing, TRIPS impacts this era by safeguarding software, digital content, and data flows crucial to cloud services. It promotes innovation, ensures fair competition, and addresses digital challenges like data protection and cross-border data flows, shaping global IP policies for the digital age.[5] India became associate of the WTO and thus participant in TRIPS agreement in 1995.

CASE LAW:

Kent Ro Systems Ltd & Anr vs Amit Kotak & Ors (2017)[6]

FACTS:

• Kent RO Systems Ltd. manufacturer of water purifiers holds copyrights on the aesthetic designs of its products under the Designs Act 2000.
• Amit Kotak, the first defendant, was also manufacturing water purifiers with similar designs to Kent’s, which amounted to design piracy under the Designs Act.
• Amit Kotak showcased the infringing products on eBay’s e-commerce website.
• Kent RO Systems informed Amit Kotak and eBay about the infringement and demanded removal of the infringing content. eBay took down the specific items mentioned.
• Kent RO Systems alleged there were 100 more infringing items on eBay’s website that should be removed without specific intimation.

ISSUES:

• Whether eBay, as an intermediary, was required to pre-screen all content for potential infringement before hosting it on its website.
• Whether eBay was liable for copyright infringement by allowing the infringing products to be listed on its platform.

JUDGEMENT:

• Delhi High Court rejected Kent RO Systems’ argument that eBay should pre-screen all content before hosting to detect potential infringement.
• court held that requiring an intermediary to pre-screen all content would be an unreasonable interference with its right to carry on business.
• The Information Technology (Intermediaries Guidelines) Rules, 2011 only oblige an intermediary to remove/disable content upon receipt of a complaint, not to proactively detect infringement.
• The court said that to make eBay liable under Section 79(3) of the IT Act, Kent RO Systems would have to prove conspiracy, abetment, aiding or inducement by eBay, which was not the case here.

Delhi High Court ruled in Favor of eBay, holding that as an intermediary, it was not required to pre-screen content for potential infringement and was protected from liability under the IT Act as long as it removed infringing content upon receiving a complaint.[7]

CHALLENGES FOR PROTECTING INTELLECTUAL PROPERTY IN CLOUD COMPUTING ERA.

Protecting intellectual property in cloud computing era is unique challenge due to technological advancements, global connectivity, and evolving business models.

Piracy:

Piracy is unauthorized use of copyrighted works, reproduction or redistribution. Where digital content can be copied and shared by which many Industries are affected such as music, film, software and more. By piracy many consequences have been faced by content creators and industries such as financial losses. Piracy undermines the value of intellectual property.

Technological Measures to counter Piracy

• Digital Rights Management (DRM):

Use of DRM technologies to protect digital content from unauthorized use and distribution.

Examples: Encryption, access control, and digital watermarking.

• Content Identification and Tracking:

Implementation of systems to identify and track copyrighted content online.

Tools: Content ID systems, fingerprinting, and watermarking technologies.

• Automated Takedown Tools:

Automated systems for detecting and removing infringing content from online platforms.

Example: DMCA-style takedown mechanisms.[8]

1. Emerging Technologies

Emerging technologies such as artificial intelligence (AI) have made intellectual property laws more complicated. AI algorithms can produce creative works, raising legal issues with attribution of authorship, ownership, and responsibility. New frameworks and regulations are needed to address these challenges.[9]

Examples: AI-generated deepfakes, automated bots distributing pirated eBooks or software cracks.

2. Lack of Awareness:

Many individuals, especially consumers and small businesses, lack awareness of IP laws and the consequences of infringement. They may unknowingly violate copyrights, trademarks, or patents through actions like sharing copyrighted images or using counterfeit goods.

Ignorance of IP laws can lead to unintentional infringement, legal disputes, and reputational damage.

Examples: Unauthorized use of copyrighted music in YouTube videos, unwitting purchase of counterfeit goods online.

3. Legal and Regulatory Gaps:

IP laws and regulations frequently lag behind technological advancements, creating gaps and uncertainties in their application to digital environments. This lag can leave loopholes that infringers exploit and complicate enforcement efforts.

Inconsistent or outdated legal frameworks may fail to adequately protect emerging forms of digital IP or address novel challenges posed by technologies like blockchain or AI.

Examples: Debate over the liability of online platforms for user-generated content under copyright law, challenges in applying traditional copyright doctrines to digital works like 3D printing files or virtual reality experiences.

4. Lack of International Harmonization

Differences in intellectual property laws and enforcement across countries make it difficult to protect rights globally. Harmonizing these laws and regulations internationally is an ongoing challenge that requires cooperation between governments, organizations, and stakeholders.

To address these complex challenges, a multifaceted approach is needed that combines legal, technological, and collaborative solutions. Ongoing efforts to update intellectual property frameworks, develop more robust DRM systems, and foster international cooperation are crucial to protecting creativity and innovation in the digital age.[10]

5. Infringement

The ease of duplicating and distributing digital content has led to a rise in piracy and unauthorized use of copyrighted works. Policing and monitoring the distribution of protected works online is extremely difficult, as digital copies can be shared globally with ease.

6. Balancing Interests

Navigating a balance between the interests of creators, consumers, and digital platforms is a complex challenge. Protecting IP rights without hindering innovation and access is crucial.

7. Cybersecurity Risks

Protecting Intellectual Property involves safeguarding against cyber threats like hacking, data breaches, and ransomware attacks, which can compromise valuable intellectual assets.

To Tackle this Challenges

• Modernize IP laws to address emerging digital threats and technologies, such as strengthening trade secrets protection and data exclusivity.
• Harmonize IP laws and enforcement across different jurisdictions to enable cross-border protection.
• Establish dedicated IP courts and tribunals to expedite dispute resolution.
• Increase penalties and criminal sanctions for IP infringement to deter piracy and counterfeiting.
• Empower law enforcement agencies with specialized IP crime units and training programs.
• Promote public-private partnerships between authorities and industry to combat digital piracy.
• Improve cross-border cooperation and information sharing to tackle transnational IP crimes.
• Leverage technology like digital rights management and blockchain to secure digital content.
• Increase IP education and awareness campaigns, especially targeting small businesses and creators.
• Provide incentives and support for IP commercialization and technology transfer.
• Strengthen IP asset management capabilities within companies and research institutions.
• Promote collaborative innovation models and open licensing frameworks.
• Digital Rights Management can also be considered as solution to challenges. DRM technologies like encryption, watermarking, and access restrictions can help enforce copyright and protect against digital piracy.

What is DRM?

Digital Rights Management (DRM)

Technology used to control access to and usage of digital content to protect copyrights. It Manages legal access to digital media by imposing controls on usage, reproduction, modification, and distribution.

Usage Areas:

1. Sensitive Information: Protects business trade secrets, confidential data, and financial information.
2. Discoveries and Inventions: Safeguards patented work of scientists, researchers, and engineers.
3. Artistic Works: Shields music, movies, and artistic expressions from piracy and unauthorized use.
4. Business Branding: Protects logos and brand names to maintain reputation and goodwill.

Benefits:

• Prevents unauthorized access and distribution.
• Supports revenue generation by controlling distribution channels.
• Safeguards intellectual property rights in various sectors.

Challenges faced by DRM are Balancing rights of content creators and consumer expectations, Compatibility issues across different devices and platforms, Continuous evolution due to advancements in digital technology.

DRM IN INDIA

In India, the Copyright Act of 1957, amended in 2012, safeguards the rights of creators by protecting literary, dramatic, musical, and artistic works for 60 years from the year following publication. Amendments like Sections 65A and 65B specifically protect Digital Rights Management (DRM) systems, making unauthorized alterations punishable by up to 2 years’ imprisonment and fines. The Information Technology Act, of 2000 complements these protections by exempting intermediaries, including DRM service providers, from liability in certain cases, reinforcing India’s framework for intellectual property rights in the digital age.[11]

CONCLUSION:

Protecting intellectual property in India’s cloud computing era presents complex challenges. The existing legal frameworks, such as the Copyright Act of 1957 and the Information Technology Act, 2000, struggle to effectively address the ease of digital content reproduction and distribution facilitated by cloud technologies. High rates of digital piracy underscore enforcement gaps, while the cross-border nature of cloud computing complicates jurisdictional oversight. Emerging technologies further complicate matters, demanding adaptive legal reforms and robust enforcement strategies. Effective protection requires enhanced international cooperation, updated legal frameworks, and heightened stakeholder awareness to balance innovation with IP rights preservation.

REFERENCES:

1.  https://ipindia.gov.in/act-1999.htm Visited on 6-7-2024
2. https://abounaja.com/blogs/paris-convention-of-1883# Visited on 6-7-2024
3. https://www.wipo.int/treaties/en/ip/berne/ Visited on 6-7-2024
4. https://indiancaselaw.in/kent-ro-systems-ltd-and-ors-v-amit-kotak-and-ors/ Visited on 7-7-2024
5. https://www.globalipconvention.com/blog/intellectual-property-challenges-in-the-digital-age Visited on 7-7-2024
6. https://www.theippress.com/2023/11/28/intellectual-property-right-in-the-digital-age-exploring-new-frontiers/ Visited on 7-7-2024
7. https://www.globalipconvention.com/blog/intellectual-property-challenges-in-the-digital-age Visited on 8-7-2024
8. https://www.researchgate.net/publication/255993106_Does_India_Need_Digital_Rights_Management_Provisions_or_Better_Digital_Management_Strategies Visited on 8-7-2024
9. Kent RO Sys. Ltd. & Anr. v. Kotak & Ors., 2017 SCC Online Del 7229

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[1] WIPO, Protecting the intellectual property in the cloud, https://www.wipo.int/wipo_magazine/en/2015/03/article_0004.html, (last visited July 6, 2024)

[2]The Geographical Indications of Goods (Registration and Protection) Act, 1999 No.48 of 1999, No. 2(e), Acts of Parliament, 1999 (India)

[3] Abou Naja, https://abounaja.com/blogs/paris-convention-of-1883#, (Last visited July 6, 2024)

[4] WIPO, https://www.wipo.int/treaties/en/ip/berne/, (Last visited July 6,2024)

[5] WIPO, https://www.wipo.int/wipo_magazine/en/2015/03/article_0004.html, (July 6, 2024)

[6] Kent RO Sys. Ltd. & Anr. v. Kotak & Ors., 2017 SCC Online Del 7229

[7] https://indiancaselaw.in/kent-ro-systems-ltd-and-ors-v-amit-kotak-and-ors/
Kent Ro Systems Ltd & Anr v. Amit Kotak & Ors, (2017) SCC Online Del 7008.

[8] Global intellectual property convention, https://www.globalipconvention.com/blog/intellectual-property-challenges-in-the-digital-age, (last visited July 7, 2024)

[9] Arpit Tiwari, Intellectual Property Right in the Digital Age, the IP Press, July. 07,2024, https://www.theippress.com/2023/11/28/intellectual-property-right-in-the-digital-age-exploring-new-frontiers/

[10] Global intellectual property convention, https://www.globalipconvention.com/blog/intellectual-property-challenges-in-the-digital-age, (last visited July. 8,2024)

[11] Arul Scaria, Does India Need Digital Rights Management Provisions or Better Digital Management Strategies? , research gate, July. 8, 2024, https://www.researchgate.net/publication/255993106_Does_India_Need_Digital_Rights_Management_Provisions_or_Better_Digital_Management_Strategies

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