PHYSICAL AND ONLINE INFRINGEMENT OF INTELLECTUAL PROPERTY LAW

BY: HASSAN HABIBAT TEMITAYO

Abstract

Intellectual property (IP) infringement is a growing concern in the digital age. This work explores the concept of IP infringement, including physical and online infringement. Physical infringement involves counterfeiting, unauthorized manufacturing, and distribution of physical products.

Online infringement encompasses digital piracy, online counterfeiting, copyright infringement, and trade secret misappropriation. The study discusses the challenges of online IP infringement, including lack of awareness, global reach, anonymity, ease of distribution, financial incentives, and perception of low risk. To avoid online IP infringement, individuals and businesses must obtain proper licenses and permissions, monitor third-party content, stay informed, and seek legal advice.

Recent changes in copyright law have brought online copyright penalties in line with physical copyright penalties, with both now carrying a sentence of up to ten years in prison. This work provides a comprehensive overview of IP infringement, highlighting the importance of IP awareness and respect in the digital era.

Introduction – The modern concept of intellectual property developed in England in the 17^th and 18^th centuries. The term “intellectual property” began to be used in the 19^th century, though it was not until the late 20^th century that intellectual property became commonplace in most of the world’s legal systems.

The main purpose was encouraging the creation of a wide variety of intellectual goods. To achieve this, the law gives people and businesses property rights to certain information and intellectual goods they create, usually for a limited period of time.

Supporters argue that because IP laws allow people to protect their original ideas and prevent unauthorized copying, creators derive greater individual economic benefit from the information and intellectual goods they create, and thus have more economic incentives to create them in the first place.

Advocates of IP believe that these economic incentives and legal protections stimulate innovation and contribute to technological progress of certain kinds.

However, According to WIPO, Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

Definition of IP infringement

Intellectual property infringement is a violation or breach that erodes, weakens, or damages intellectual property rights.

As a result, a wide range of IP protections, such as trademarks, patents, copyright, and trade secrets, have been enshrined to ensure IPs aren’t stolen or violated through illegal malfeasance.

For example, creating a listing using a third party’s image, trademark, logo, design, etc., without the appropriate permission from the intellectual property rights owner, can constitute intellectual property infringement.

Also , intellectual property rights infringement is any breach of intellectual property rights. Intellectual property rights are infringed when a work protected by intellectual property laws is used, copied or otherwise exploited without having the proper permission from the person who owns those rights.

How to Avoid Intellectual Property Infringement

Avoiding IP infringement should always be top of mind for organizations so as to avoid the legal exposure of IP violations. However, even well-meaning entrepreneurs run the risk of violation if they don’t conscientiously follow certain practices, like the following:

Avoiding patent infringement: This is done by simply obtaining the proper and appropriate licenses, ensuring you have the rights to the products you use. Therefore, you should never use registered or protected material unless you get express written consent.

Avoiding copyright infringement: The best way to avoid this type of infraction is by creating original images or using royalty-free images. Moreover, the latter is inexpensive, only requiring a gentleman’s agreement to give credit to the creator.

Watch out for subsisting IP rights: An IP owner may have multiple claims and causes of IP infringement. This is common in artistic works where both copyright and trademark laws protect a design like a logo.

Concept of Physical and online infringement

Online Intellectual Property Infringements

Online intellectual property (IP) infringements occur when someone violates the exclusive rights of IP owners, such as patents, trademarks, copyrights, or trade secrets, in the digital realm.

This can involve unauthorized copying, distribution, or use of protected works or assets without the IP owner’s permission.

With the growth of the internet and digital technology, online IP infringements have become increasingly prevalent and challenging to address.

Types of Online IP Infringement

The most common types of online IP infringement involve copyright, trademark, and patent violations.

Here are some examples of each type:

Copyright Infringement

Copyright infringement occurs when someone uses protected works without the permission of the copyright owner. Examples of online copyright infringement include:

• ‌File-sharing: Distributing copyrighted music, movies, e-books, or software through file-sharing platforms, torrents, or other peer-to-peer networks without authorisation.
• ‌Unauthorised streaming: Hosting or accessing unauthorised streams of copyrighted movies, TV shows, or live events.
• ‌Plagiarism: Copying and republishing copyrighted articles, blog posts, or other written content without permission or proper attribution.
• ‌Using copyrighted images, videos, or music: Embedding or posting copyrighted images, videos, or music on websites, blogs, or social media platforms without obtaining the necessary licenses or permissions.

Trademark Infringement

Trademark infringement involves the unauthorised use of a registered trademark, which is likely to cause confusion among consumers regarding the origin, affiliation, or endorsement of goods or services.Examples of online trademark infringement include:

• ‌Domain name squatting: Registering domain names that are identical or confusingly similar to well-known trademarks with the intent to profit from the goodwill associated with those trademarks.
• Fake online stores: Creating websites that imitate the design and branding of well-known companies to sell counterfeit or infringing products.
• ‌Unauthorised use of logos or branding: Using a company’s logo or branding elements on a website or social media platform without permission, in a way that could confuse consumers.
• ‌Keyword advertising: Bidding on trademarked terms in search engine advertising platforms to divert traffic to competing or unrelated websites.

Patent Infringement

Online patent infringement occurs when someone uses, sells, or offers for sale a patented invention without the permission of the patent owner. Examples of online patent infringement include:

• ‌Selling infringing products: Offering for sale or selling products on e-commerce platforms that incorporate patented technologies without authorisation from the patent holder.
• Unauthorised use of software or technology: Using patented software, algorithms, or other technologies on a website or online platform without obtaining the necessary licenses or permissions.
• ‌Infringing mobile apps: Developing and distributing mobile applications that incorporate patented features or functionalities without the patent owner’s consent.

Trade Secret Infringement

Trade secret violation, also known as trade secret misappropriation, occurs when someone improperly acquires, discloses, or uses a trade secret without the owner’s authorisation. Trade secrets are confidential information that gives a business a competitive advantage and are protected under intellectual property law.

Examples of trade secrets include manufacturing processes, formulas, recipes, business strategies, and customer lists. There are two primary types of violation of trade secrets:

• ‌Improper Acquisition: This occurs when someone acquires a trade secret through unlawful means, such as theft, bribery, hacking, espionage, or breach of a confidentiality agreement. For example, an employee might steal sensitive information from their employer and use it to start a competing business, or a competitor might bribe an employee to disclose confidential information.
• ‌Unauthorised Disclosure or Use: Trade secret infringement also occurs when someone who has lawfully acquired a trade secret discloses or uses it without the owner’s permission. This often involves employees or business partners who are entrusted with confidential information and later disclose or use it in violation of their duty of confidentiality. For example, a former employee might start a new job at a competing company and reveal their previous employer’s trade secrets to gain an advantage in the market.

It is crucial for individuals and businesses to be aware of IP laws and their obligations to avoid online IP infringement.

Reasons for Online Intellectual Property Rights Infringement (Challenges)

• ‌Lack of awareness:  Many individuals may not fully understand IP laws or the implications of their actions.
• ‌Global reach : Online IP infringement often transcends national borders, making it difficult for rights holders to enforce their IP rights across different jurisdictions.
• ‌Anonymity:  The internet provides a level of anonymity that can make it difficult to identify and prosecute infringers.
• ‌Ease of distribution:  This ease of distribution enables infringers to quickly and widely disseminate copyrighted material, counterfeit products, or patented technologies without authorisation.
• ‌Financial incentives: Infringers may be motivated by the potential for financial gain, as they can profit from the sale of counterfeit products or the unauthorised distribution of copyrighted content. These profits can be substantial, particularly when the infringed products or content are in high demand.
• ‌ Perception of the low risk: Some individuals may perceive the risk of being caught and prosecuted for online IP infringement as low, especially given the anonymity and global reach afforded by the internet. This perception may embolden them to engage in infringing activities, believing that the potential rewards outweigh the risks.

How to Avoid Online IP Infringement? ( Remedies)

To avoid online intellectual property (IP) infringement, it is essential to be aware of IP laws and best practices. The following guidelines can help individuals and businesses minimise the risk of infringing on someone else’s IP rights while operating online:

• ‌Obtain proper licenses and permissions: If you want to use copyrighted materials, such as images, music, or articles, make sure to obtain the necessary licenses or permissions from the rights holders.
• ‌Monitor third-party content: If you operate a platform or website that allows users to upload or share content, implement measures to prevent or remove infringing material.
• ‌Stay informed: Keep up-to-date with changes in IP laws and best practices, as well as emerging technologies and platforms that could impact IP protection.
• ‌Seek legal advice: If you are unsure about whether your online activities may infringe on someone else’s IP rights, consult an attorney experienced in intellectual property law for guidance. By following these guidelines, individuals and businesses can minimise the risk of online IP infringement and foster a culture of IP awareness and respect.
• ‌Create original content: To avoid copyright infringement, always create original content for your website, blog, or social media platforms. If you must use someone else’s work, ensure that you provide proper attribution and follow the principles of fair use, where applicable.
• ‌Familiarise yourself with IP laws: Learn about copyright, trademark, and patent laws in your jurisdiction and any other regions where you operate or do business. Understanding the legal framework will help you recognise and respect the IP rights of others.

How Online copyright brought in line with physical  copyright penalties

There has always been a distinction between “Physical Copyright” and “Online Copyright”. In its simplest form, Physical Copyright is infringed by someone actually reproducing a tangible object, such as a painting. Online Copyright is infringed by someone reproducing content and re distributing it, such as by copying and pasting others work online. Plagiarism of logos, pictures and website content is therefore a form of copyright infringement.

Sanctions for Infringement:

One of the further distinctions arises in the punishments attributable to each area, providing the offence is severe enough to warrant Criminal Proceedings by satisfying the relevant tests. The possible sentence for Physical Copyright is up to ten years in prison. For Online Copyright there is a potential prison sentence of up to two years in prison. Civil Proceedings for damages can be pursued for both.

Obviously the deterrent is vastly different when considering both forms of Copyright. The large void in consequences for either infringement clearly highlights the fact that Online Copyright Laws were in danger of being behind the times. In an increasingly digital world, the Law on Copyright infringement failed to recognise the shift from the “pirate DVD” era to a bit torrent and internet era.

IP Infringement Cases

Yahoo! Inc. v. Akash Arora & Anr case

The Yahoo! Inc. v. Akash Arora & Anr case was a landmark decision in India that shed light on the importance of protecting intellectual property rights in the digital sphere, particularly regarding domain names and trademarks. This case emphasised that unauthorised registration and use of domain names similar or identical to established trademarks or service marks can constitute infringement and have serious legal consequences.

In this case, the defendant had registered and was using the domain name ‘Yahoo India,’ which closely resembled the plaintiff’s well-known ‘Yahoo!’ trademark. The court recognised that the use of the domain name could lead to confusion and deception among internet users, as they might assume that the defendant’s website was affiliated with or endorsed by Yahoo! Inc. The court’s ruling affirmed that domain names on the internet hold the same function as trademarks or service marks, and thus, the defendant’s use of the domain name amounted to infringement of the plaintiff’s trademark rights.

Additionally, the court found that a simple disclaimer by the defendant was insufficient to prevent confusion and differentiate the two entities.

This case serves as an essential precedent in the protection of trademark rights in the online environment, especially in the context of cybersquatting.

 Star India Pvt. Ltd. V. Moviestrunk.com & Ors.

This case involved an infringement of the copyright of a film produced and distributed by Star India, a film production and distribution company. The defendant owned online streaming websites that had unauthorisedly streamed the plaintiff’s copyrighted content. The plaintiff filed a suit for infringement of copyright, and the Delhi High Court held the defendant liable for copyright infringement as the defendant had streamed the copyrighted content without the plaintiff’s knowledge and consent. The court ordered an injunction and granted damages, thus ensuring the plaintiff’s exclusive right to control its work.

This case is a significant precedent in establishing the importance of safeguarding copyright in the digital world, particularly with the increasing use of online streaming websites. It highlights the significance of protecting the exclusive right of the copyright owner to exploit their work and the consequences of unauthorised streaming of copyrighted content.

Conclusion

In conclusion, intellectual property infringement is a pervasive issue in the digital age, affecting individuals, businesses, and economies worldwide. Understanding the concepts of physical and online infringement, as well as the challenges and remedies associated with online IP infringement, is crucial for promoting a culture of IP awareness and respect. By obtaining proper licenses and permissions, monitoring third-party content, staying informed, and seeking legal advice, individuals and businesses can minimize the risk of online IP infringement. Furthermore, recent legal developments, such as the alignment of online and physical copyright penalties, demonstrate a growing commitment to protecting IP rights in the digital era. Ultimately, fostering a culture of IP respect and awareness is essential for promoting innovation, creativity, and economic growth in today’s increasingly digital and interconnected world.

Reference

Introduction of IP: https://www.wipo.int/about-ip/en/

Definition of IP infringement; https://en.m.wikipedia.org/wiki/Intellectual_property_infringement /

https://en.m.wikipedia.org/wiki/Intellectual_property

How to Avoid Intellectual Property Infringement Infringement:https://www.digitalguardian.com/blog/intellectual-property-infringement

Concept of Physical and online infringement: https://bytescare.com/blog/online-intellectual-property-infringements

How Online copyright brought in line with physical  copyright penalties

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