Intellectual Property and Cyber Law Issues - Essay Example

Intellectual Property and Cyber law In a world awash with technology and the internet, intellectual property (IP)has become a controversial issue. It is the duty and the responsibility of the government to protects people’s innovations and creativity. In order to achieve this objective the government employs various legislations that are meant to protect these rights. In the United States, these legislations are covered in trademark federal patents, and copyrights. Each of these provisions has a unique significance and implication to the country1. As the world continue to apply information technology in various sectors such as banking, education, trade and entertainment, intellectual property issues have become even more complicated. This has led to the formulation of a new set of laws known as cyber laws. Consequently, cyber crimes are defined as any form of malpractice that involves tampering with computer based resources, cyber fraud, cyber based intimidation, and computer hackings are some of the major cyber crimes. These laws are incorporated in the information technology act, 2000. It is difficult to implement intellectual property rights without proper cyber laws and legislation. Intellectual property Patents A patent is a legal document that is issued by the federal government to an inventor. The document gives the owner exclusive rights of reproducing or participating in his innovation without threats from other developers. The right is meant to promote creativity and innovation in various industries2. Moreover, patent rights allow members of the public to disclose innovations and other forms of technological advances in their respective industries3. Laws meant to protect intellectual property under patents have been criticized for certain ambiguities. This has necessitated constant reviews to make the required adjustments. Thus, suitable legislations should have clear definitions on patents and the extent to which patents can be applied. Furthermore, suitable legislation should set limits beyond which the legislations are considered to be violated. This is to safeguard innovators and other property developers from accusations of intellectual property theft. Trademarks Trademarks are quality assurance symbols and information used to identify the quality of a product. Ideally, trademarks are business items that are meant to protect manufacturers and traders. Tirade marks have often been accused of promoting monopoly trade, which may be harmful to the economy. This is because they promote the sale and continuity of popular products while they inconvenience inexperienced entrepreneurs. Trademarks are also used as sources of standards for a particular products and services. Copyrights Copyrights are constitutional property rights, which grant rightful owner, creators, or authors of certain material exclusive rights over their production and distribution. Copyrights provisions are meant to promote innovation and useful arts by offering incentives and protection to their owners. Ideally, copyrights protect intangible and original works including music, research, books, photographs, films, and computer software. Copyright is a collection of rights that include; the right to reproduce copyrighted material, rights to derive additional work, rights to distribution and public display. Each of these rights is protected under the information Technology Act of 2000. Cyber crime A cyber crime is regarded as any crime or offense that violates The Information Technology Act 2000. This redefinition leaves out major issues and provisions that threaten activities in the real world. Moreover, cyber laws conflicts with freedom of information and cyber space. Certainly, cyber laws cannot work in isolation and they require adequate collaboration with other supportive or related laws. For example, a person who is accused of sending intimidating massages over the internet will be charged with criminal intimidation provisions that are contained in the common laws4. Further, a person charged with internet fraud will be liable for a similar crime provided for under the penal code. In the United States, freedom of speech is protected under the First Amendment and it does not necessary internet based conversations. This is because it is difficult to control communication over the internet. In order to control cyber crime the government has stipulated and categorized cyber crimes according to its severity and influence5. Spam has been categorized as a cyber crime although the issue is still contentious. Spam is described as the act of sending bulk email or messages to unknown users through emails and websites. Laws and provisions set to protect people against spam are meant to protect internet users from malware and unsoldered messages6. Sending obscene images is also described as a form of cyber criminally and relevant laws have been formulated to cover it. Other areas of interest include Cyber warfare hacking, and data mining. This has become a major concern leading to the development of tighter laws to control the same. Lawmakers have created tough legislation to protect government and private interests that are at threat from computer hackers7. Notable cyber crime and intellectual property related cases include United States v. Morris (1991), United States v. Riggs, and United States v. Bradley Manning. In the later case, Bradley Manning a former us soldier was accused of disclosing confidential and sensitive information that included tens of thousands of documents belonging to the army. The court found him guilty and he was remanded awaiting further investigation and trial. Computer Fraud and Abuse Act of 1984 (CFAA) was approved by the congress in 1984. The act was meant to protect personal and corporate computer users from sabotage that is related to computer hacking and cyber related crimes. Since then, USA PATRIOT Act and Identity Theft Enforcement and Restitution Act have amended the act several times in 2001 and 2008 respectively. Clause (b), of act criminalizes conspiracy and attempts that are geared towards sabotage of computer systems. Relationship between cyber laws and IP rights Cyber laws are not only meant to protect the public against fraud and government installations against sabotaged, but they are also meant to reinforce IP rights. Thus, the two sets of laws cannot exist in isolation. Certainly, cyber laws protect the general aspect of IP rights and are usually related to online materials or materials that can be transferred or stored over the cyber space. The controversy that surrounds cyber laws and IP emanates from the availability and accessibility of web content that is supported by internet connectivity8. For instance Anti-Counterfeiting Trade Agreement (ACTA) protects individuals and corporate while they are operating their trades on the cyberspace. While the intellectual property rights safeguard innovations and developments achieved, cyber laws protects them from unauthorized access, copying, or manipulation9. For example, most musicians are trading their music online. In such transfers, the artist requires laws to protect their work from unauthorized access and duplication. Although the laws are clear on sources and impacts of cyber laws, the current computer systems have loopholes that allow illegal access and use of intellectual properties. Current system Most operating systems do not support modern security structures. An operating system (OS) is a basic element in any computer system. Ideally, an OS is designed to manage activities and resources available to the machine. Through these operations, security becomes an essential criterion of consideration. Thus, an OS is rated according to its security capabilities. The main operating systems include Windows, DOS, Mac OS X and, Linux. Different systems have different capabilities and, hence they have different security challenges. Unlike other kernel-based operating systems such as Linux, Windows is relatively prone to security threats. The system is regarded as the most unsecure due to its susceptibility to threats and malware. The system is an easy target for malicious code writers and hackers. The system uses usernames and password as the main user restriction tool. Lack of unified computer systems has been cited as a major source of risks on the cyberspace. Criminal Offenses under the Act Cybercrime Acts and Intellectual Property Acts often raise controversy on issues related to offences and court procedures. For instance, the Acts have been cited to contain ambiguity that involves definition of crime and subsequent charges. Due to the current availability of technology and internet connectivity, intellectual property rights need to be redefined to include upcoming issues and related prejudices. Certainly, the laws need to be redefined to include current trends in the society and appropriate consequences that relates to the same. For example is difficult to maintain the IP right of some copyrighted materials such as music and films. This is because people are now able to access these materials without incurring heavy costs. Currently, people are able to obtain music and other copyrighted materials through the internet. The internet poses a major threat to IP right and copyrighted materials. Therefore, it is difficult to determine an offence. Moreover, defendants in copyright and cybercrime related cases are able to rally defense against their accusations. This indicates existence of numerous loopholes that characterizes the above-mentioned laws. For example, in International Airport Centers, L.L.C. v. Citrin the prosecution failed proves that Jacob Citrin committed the stated crimes. This is because the court could not verify that indeed the accused person deleted confidential files belonging to IAC. Thus, the court could not gather sufficient evidence against the defendant. Instead, the court ruled that the defendant breached his contract and loyalty towards the company10. The court failed to charge the defendant based on primary accusation since it could not prove the extent or the environment under which the crime was committed. Consequently, the court could not verify the level of intent on the defendant during the time the crime was committed. Moreover, the court could not verify the impact of the acts that were committed by the defendant besides the evidence supplied to the court. The defendant augured that his actions were done through good will and they are of public interest. Major Cyber crime cases, reveals significant amount of controversy pertaining the same. This is because cyber laws and intellectual property rights cannot surpass certain civil rights such as freedom of expression and transfer of information. If the courts, became so strict on the laws, then the public will accuse them of misjudgment in relation to the after mentioned civil freedoms and rights. Consequently, copyright and cyber laws need additional clauses to make them all-inclusive. This will ensure that the laws are applied without favor or any form of prejudice. Similarly, the United States v. Lori Drew case had similar issues whereby the prosecution failed to prove beyond reasonable doubt that indeed the accused person tampered with private information. The limit of federal protection on intellectual property is also of legal concern. For instance federal trademarks are valid for up to 10 years. Thereafter, the state withdraws its protection on copyrighted goods. The level of protection affects or determines market trends and decision making among private investors. Certainly, unregistered products have become common threatening the sustainability of patent laws. The limit of patent and copyright also affects distribution of the concerned items due to fear of accusation. Therefore, the government needs to ratify the laws to enhance their compliance with legal proceeding and social trends. Conclusion Cyber laws and intellectual property rights are dependent and of concern in the current world. Cybercrime affects nearly all aspects of human existence in an unregulated cyber space. With reference to the current and related cyber crime cases, the government needs to amend existing laws to include clauses that deal with the current levels of cyber crime and intellectual property theft. The current laws and legislation do not incorporate current social trends and level of technological advancements. In addition, current laws have loopholes that can be utilized by criminals to commit crime. Therefore, the legislature needs to amend the laws in order to remove ambiguity and incoherencies. Works Cited Black Hilbert, Black’s law dictionary (6th ed. 2011). Brooker D. Peter, Reducing mid-air collision risk in controlled airspace: Lessons from hazardous incidents, 43/9 Safety Science, 715, 738 (2010). Dave D. Smith. US DOJ Drops All Pending Charges against the JSTOR Liberator, Days after His Suicide, International Business Times, Available at http://www.ibtimes.com/aaron-swartz-case-us-doj-drops-all-pending-charges-against-jstor-liberator-days-after-his-suicide (Last viewed may. 1, 2013). Gesell Larsen, Aviation and the Law (2nd ed. 2003). Greenawalt Kent, Law and objectivity (2002). Hamilton Scott, Practical aviation law (2nd ed. 1996). Lemley Mark Menell, Peter & Merges A. Robert, Software and Internet Law. (4th ed. 2011). McCool Grant, Computer Fraud and Abuse Act: The 1980s-Era Hacking Law Out Of Step With Today's Internet, Analysts Say, Huffington Post, Available at http://www.huffingtonpost.com/2012/07/29/computer-fraud-and-abuse-act_n_1716058.html (Last viewed may 1, 2013) Pollaro Greg, Disloyal Computer Use and the Computer Fraud and Abuse Act: Narrowing the Scope. Duke Law & Technology Review. 2012. Sumpter Paul, Intellectual Property Law: Principles in Practice (4th ed. 2006). Read More