In this digital era, there are hardly any products or services which are marketed online or sold through e-commerce. As discussed earlier, knowledge economy is now at its prime and the products and services marketed and delivered through digital media are significant features of the knowledge economy. Increased value of e-commerce transactions as well as mobile commerce is justifying the same.
TRIPS agreement enlarged the scope of intellectual property rights by including computer programs, broadcasting, performances and designs under the umbrella of copyright. Along with the benefits offered, it also brought out various intellectual property infringement issues.
According to ARTURO ANCONA, digitalization of intellectual works has enabled intellectual property to transfer so efficiently to the internet. As a result, authors, publishers makers of movies and music albums, software developers etc. can now commercialize their products and services using advanced technologies in the digital atmosphere.
Thus, management of intellectual property in the online environment needs a special attention.
Key factors to be considered while commencing an e-commerce business
Migration of intellectual property to the internet can be seen with respect to each species of rights. Major intellectual property related issues in connection with an e-commerce business are related to its domain name, copyright and software patents.
Domain name is nothing but the part of a network address which identifies it as belonging to a particular domain. It is mnemonic representation of the address of a computer on the Internet.It is easy to remember and also indicates what the website contains. Eg. Intellectual Property Primer. A domain name is also known as “.com’s”, “dot com’s”, “net names”, “URL addresses”, or “web addresses”.
Domain names have become a typical instrument for communication with customers.Domain name adopts a role similar to that of a trademark. It helps to identify the source of a commercial establishment and its goods and services. Expansion of commercial activities in the internet has led to the development of a new form of trademark infringement. Most common form of such trademark infringement is domain name infringement.
Tradenames, personal names, company names and sometimes even generic words, which otherwise could not be protected under trademarks could be registered as domain names.Hence, domain names may incorporate a trade mark or a company name. However, it is a distinct and discrete form of designation, and a domain name is not a trademark and it does not function as one.
More than one commercial establishment or individual can register the same trade mark; provided such registrations are for completely different products or services. However, it is a valuable asset if one can own a domain name which match with their trademark. In other words, one should also look for the availability of domain name while choosing a trademark.
The Agreement on Trade Related Aspects of Intellectual Property Rights increased the scope of copyright by including computer programs, broadcasting, performances and designs under its umbrella. As a result, traditional conventions for using existing material which is subject to copyright is altered by the digitalization and networking.
Subsequently, copyright law is confronted by the latest experience of dealing with combinations of different kinds of works like multimedia, virtual reality show or online broadcasting of events etc. However, such forms of creative works can be copied, distributed, transmitted, edited, manipulated and stored. Hence, it is necessary for the expansion of copyright law to the digital world.
According to Article 9 of the Berne Convention, a copyrighted work is deemed to have reproduced if it is stored in an electronic medium. According the report of Information Infrastructure Task Force of the United States, each of the following instances will shall be treated as copying of copyrighted work;
- When a file is transferred from one computer network user to another, multiple copies may be made.
- When a printed work is ‘scanned’ into a digital file.
- When a work is placed into a computer, whether on a disk, diskette, ROM or other storage device or in RAM for more than a very brief period.
- When other works – including photographs, motion pictures or sound recordings – are digitalized.
- Whenever a digitalized file is ‘downloaded’ from a bulletin board system (BBS) or other server.
- Whenever a digitalized file is ‘uploaded’ from a user’s computer to a BBS or other server.
Present business world is primarily depending on internet and computers. In the absence of a software or program computers and internet are not functional. Thus, even the e-commerce sector shall be treated at par with other industries. Hence, the IP protection shall also be extended to e-commerce.
Wide range of inventions can be protected under patents. In e-commerce business, most of the business methods are developed with the help of a software program. Thus, the question is whether software is a patentable subject matter? Software patenting is one of the most debated topic at national and international level.
Though computer programs and business methods are expressly excluded from the list of patentable subject matter, a computer program with technical effects are patentable, whereas a software “as such” not patentable.
In order to qualify for patent protection, the software have to overcome a technical problem in a non-obvious way. Supreme Court ruling In Re Bilski case is very relevant in this context, where the apex court held that, an algorithm which is not a patentable subject matter does not become patentable merely because it is implemented using off-the-shelf computer hardware.
On the other side, if we treat a software or a computer program within the meaning of patentable subject matter, the enforcement of such patent rights over the digital world will be leading to various complex issues. Because, protection of patents are granted on nation to nation basis and the national laws for the protection of patents can be enforced only within the territory of respective country.