Internet Law: The Rights Protected through the Intellectual Property Law - Essay Example

INTERNET LAW Module Submitted Submitted By: Murat 07/24/2009 Word Count: 4000 INTERNET LAW Answer The present study aims to explore the rights protected through the intellectual property law with special reference to the laws related to the rights and privileges created in the aftermath of cyber and internet technologies. These include preservation of domain name, number, contents, pictures, designs, poems, essays and other materials registered by the creators or designers. The Internet Corporation for Assigned Names and Numbers (ICANN) has made policies and established authorities in order to provide complete protection from misuse of any type of the violation of these rights and privileges. Uniform Dispute Resolution Policy (UDRP), Nominet's Dispute Resolution Service (NDRS) and other authorities are working under the commands of the ICANN, which serves as the custodian of rights related to the intellectual property existing on the internet. Before embarking upon the topic under study, it would be advisable to precisely define intellectual property. The term intellectual property simply refers to the assets that are the outcome of the intellect or ideas of an individual or a group of individuals, which solely belongs to the author or the individual on the one hand, and the organisation to whom its rights have been sold or delegated by the individual creating the intellectual property, and these types of intellectual property can either be tangible or intangible. The term Intellectual Property (IP) reflects the idea that its subject matter is the product of the mind or the intellect.'These could be in the form of Patents; Trademarks; Geographical Indications; Industrial Designs; Layout-Designs (Topographies) of Integrated Circuits; Plant Variety Protection and Copyright.'1 Intellectual property act 1994 has determined two major types of intellectual property, which include i) Copyright and ii) Industrial property. Copyright consists of sections of art and literature including prose work, poems, lyrics, drama, novel, narrative, thesis, presentation, articles, essays, broachers, film, paintings, sculptures, drawings, photographs, musical tones and songs, printing material, publications, architectural and audio-visual works. Rafique defines copyright in these words: "Copyright is given to the first producer of a book irrespective of the fact whether that book is wise or foolish, accurate or inaccurate, or of literary merits or no merit whatever". 2 Modern technology has given a go to the introduction and implementation of new laws in order to settle the problems and issues appeared on the basis of information technology. The use or misuse of such property without the prior permission of the creator of the intellectual property is strictly prohibited under the intellectual property act. Intellectual Property Act aims to protect the rights of the owners and creators of the property and assets. The World intellectual Property Organization defines intellectual property in these words: "Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce." 3 Almost all the organisations whether large of small, national or multinational, and industrial or artistic develop logos, draw designs and introduce some specific names that serve as the identity mark of the company. Intellectual property is the identity mark of an individual, a company, an organisation or an industry, over which the creator contains complete and unconditional rights. The same is applied in respect of domain names and other rights created in the aftermath of technological advancements and hi-tech revolution. The statute of law provides protection to such property in favour of the originator, and claim over this type of property without referencing to the devisor is against the statute of law and liable to be punishment. Copyright Act, Trademark Ordinance and Patents Ordinance provide protection to intellectual property rights. Latest technological advancements have brought new and novel changes in all fields of life, which have altered and widened the scope of ownership. It is particularly the case with the cyber world and the internet, which has become the most popular mode of communication, transactions and business activities. Consequently, the political authorities have devised laws and introduced policies according to the changing socioeconomic and technological changes. Similarly, the US government has established ICANN with the objective of the preservation of rights and obligations created after the internet revolution sought its domination all over the globe, and the corporate activities made a sure headway in every profession of the globe through the internet. Consequently, there appeared the need for an autonomous body so that it could regulate and supervise all the individual, private and corporate activities being conducted through internet and could settle down the disputes appeared as the result of the ownership and use of the name, number, design and contents of the web domains. 1Hence, the main objective behind the establishment of ICANN was to devise policies and introduce strategies, time and again, for the protection of legal rights of the individuals and companies. As a non profit corporation established in September 1998 to oversee internet technical management functions, previously managed by the US government, the Internet Corporation for Assigned Names and Numbers (ICANN) has assumed a number of responsibilities in technical management of protocols, addressing and domain names, which are critical to the stability and growth of the internet.4 Trademark and copyright acts not only allow the use of the already name and number of a new company or domain under the same title, but also these acts strictly prohibit the adaptation of such names that could create confusion and suspicion regarding the already existing titles. In other words, trademark act does not allow choosing the names and titles of similar accent, logo, design or trademark, and come under the fold of cheating and fraudulent. According to section 3(3) (b) of Trademark Act 1994: "A trademark shall not be registered if it may deceive the public."5 Similarly, section 12 of the same act protects the name and number of a company name, logo, design or patent in these words: 1. Save as provided in sub-section (3), no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. 2. Where separate applications are made by different persons to be registered as proprietors respectively of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, the Registrar may defer the acceptance of the application or applications bearing a later date until after the determination of the proceedings in respect of the earlier application, and may dispose of such application or application or applications in the light of the evidence tendered in relation to earlier application and the oppositions thereto, if any. 3. In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. Same is applied in the cases of domain name, which come under the fold of trademark act. ICANN has been delegated with the powers to look into the internet domain names, titles and numbers for the protection of intellectual property rights without involving the court of law. The basic motive behind that all was to make an autonomous body for amicable settlement of disputes on the one hand, and the avoiding of the name of same or similar titles, on the other. This Uniform Domain Name Dispute Resolution Policy (the "Policy") has been adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party other than us (the registrar) over the registration and use of an Internet domain name registered by you.6 Similarly, NDRS was introduced to avoid the expensive and lengthy court processes and provide the users and customers with a swift and speedy remedy against the allotment of domains as well as settlement of the disputes. In the words of the organisation: For most of the people, court system is too expensive and difficult, so we provide Dispute Resolution Service as a cheap and quick way of dealing with these disputes. 7 2 Though the UDRP and NDRS were introduced by ICANN to settle all the disputes in a free, fair and legal way, yet both these services have failed to provide a just, transparent and fair resolution of the disputes raised time and again during the course of time. The critics are of the opinion that the organisations, working under the commands and supervision of the ICANN, have limited their scenario up to cyber squatting only, and have do not look into other violations being committed under the very jurisdiction of these authorities. Hence, they have failed to help the people seeking their support while making their disputes settled. At this stage, it would be worthwhile to clarify and elaborate the term cyber-squatting, in which ICANN has confined its activities. Cyber-squatting is the most recently introduced that appeared in the wake of information technology insurgency, and it refers to the misusing the name and reputation of already existing domain in one's own favour, so that the profits and benefits could be gained out of treachery and malafide intentions. The firms, organisations and corporations blame UDRP of applying partiality, perhaps due to taking bribe or some other undue favour, while announcing its judgements and deciding the cases under its jurisdictions. An overwhelming majority of the organisations are of the opinion that it is the routine matter of the UDRP to support well reputed and world famous corporations while negating the rights and privileges of small scale business owners and non-commercial creative organisations. The most imperative of the causes which created suspicion and people's dissatisfaction towards the judgments made by ICANN and its dominion organisations include the partiality and prejudice of the ICANN towards the individuals and nations as well as small-scale traders and business/domain owners. Being the US based regularity organisation, it maintains prejudice and displays biased ness towards the European, Asian and African companies and parties to the contract seeking its support in the settlement of the disputes. It can be argued that even though the main policy of ICANN is that it is a private, non-profit organisation, accountable to the whole internet community, in reality it is an American corporation regulated by American laws and administered by the American citizens. 8 Lack of price fee is also among one of the most prominent hurdles behind the announcement of fair settlement between two or more parties. The victim parties often take the plea that bribery and undue favours taken by the UDRP are the chief cause of the unjust attitude towards the small corporations. It has aptly been stated that the running business of such corporations go to dogs provided their domains are allotted to the grand brands of the world, particularly to the US based firms, because they desire to get the same name for their new projects and business ventures. It is a fact beyond suspicion that if an organisation is offering its services against the fee or charges, it would have the capability of working more diligently showing more and more transparent results and judgments. CADNA report on domain drop catching submits: Beyond just making ICANN's domain name fee non-refundable, ICANN might opt to levy a restocking fee - or a similar fee - that would be charged for every domain name immediately upon registration. When considering the implementation of a restocking fee, it is important to remember that unless a restocking fee is significant (in the range of 50% of the cost of a name or more), it will not do enough to curb Dot-COM domain tasting and therefore will not sufficiently protect consumers and the integrity of the Internet. 9 The statistics reveal the very fact that about 140,000 domains are registered per month all over the globe, out of which 1 in 2000 creates trouble and requires settlement, which simply means the ratio of disputes is very low, though it cannot be stated as negligible. The main responsibilities ICANN has been delegated with include the privacy, security, accountability, transparency, TLD management, party relationships and others. The security of the web domains is the most essential responsibility of ICANN and its subordinate organisations i.e. UDRP, Nominet and others. It is therefore, Nominet Dispute Policy generally keeps three vital issues while settling a dispute, which include the date (and time) of the registration of the domains, so that the parties seeking relief could be provided with immediate and transparent relief. In addition, the spellings and title of the domains registered by the companies are also taken into account by Nominet. The final issue, appeared as the most necessary matter, for the making of judgement for the ownership and allotment of domain name or numbers according to the provisions of internet law determining the jurisdictions of ICANN and dominion organisations is the nature of business the parties are engaged into. The policy of deciding the case and issuing judgement on the basis of first come first obtain is really close to the legal and moral legal relief, as the already existing domain must get the right to sustain its identity and carry on its corporate, individual, creative or commercial activities. Similarly, the spellings and name of the domain title must also be maintained on the basis of first come, first take; but if decision is taken on the foundation of the nature of activities or business volume, it may surely jeopardise the very concept of justice and fair play. Hence, no organisation or authority could be permitted to decide the fate of the parties under dispute by adopting the criteria of favouring one and condemning the other provided it is a non-US organisation or contains little business volume or comparatively low corporate worth. The US authorities has fixed huge amount for suing against ICANN and UDRP, so that the people and corporations could not pursue even their legal cases against these US based regularity authorities. Charles Runyan laments on the high fee structure of the courts of law while seeking remedy against the injustices committed by UDRP. In his words: Each Provider sets a fee for filing the complaint based on the number of panellists and the number of domain names subject to the UDRP.' The fees as of April 24, 2001, ranged from as low as $1,250 for a single panel single domain name to $6,000 for a three panel dispute involving five domain names.' When the dispute involves a large number of domain names, the fee must be determined by consulting with the provider before filing the complaint.'The Provider's fees paid by the party that files the complaint unless the domain name owner requests a three member panel, in which case the two parties are each responsible for one half of the fee.' Attorney's fees and costs are in addition to the complaint filing fees payable to the Provider.10 There have been registered several complaints against such malpractices committed by these regularity authorities in the sacred name of law and justice, though the lengthy and costly legal procedure discourages the complainants file a suit against the prejudice and discrimination inflicted by ICANN upon the innocent masses. The most effective plea UDRP takes while allotting the same domain name is the nature of business a corporate firm is running as well as the intention of the company looking for the same domain name. The same can be found out in the case of Cheltenham and Gloucester (2002). There appear many cases in which ICANN allows the use of similar names and domains, called as typo-squatting. The case of Cheltenham and Gloucester (2002)3[3] shows that slight differences are seen as similar and as the only difference is the space that must be removed in a domain name anyway, they are identical. 11 It is quite unfair to let the corporations use the similar names, particularly working in the same field, and offering services in the same profession. Another example of the prejudice displayed by UDRP is this that it has allowed a company to work under the title, similar domain of which is already working and launching its products or services through the domain and website. Another serious negligence committed by the UDRP is the allotment of domains, which creates ambiguity while reading the title name. For example, a pen producing corporation was allotted the domain title penisland.net, which has been taken as the pen island, though in reading, it appears to be penis land. In reveals the severe negligence on the part of UDRP as well as ICANN. Similarly, the website the therapist finder is read as therapistfinder.com, or the rapist finder.com, which is slang and challenges the main objective of the services and professional activities for which the domain has been acquired. In the words of renowned columnist and analysis Rod Dixon: Whether the day would come that Internet Corporation for Assigned Names and Numbers (ICANN) ICANN would actively control domain name theft. At the time, ICANN was busy expanding its authority over the Internet while, at the same time, neglecting important duties assigned to it, one of which would be to require registrars to do a better job preventing domain name theft. Sadly, neither the sex.com case, nor plans to prevent domain name thefts have been successfully implemented in the nearly two years that have passed. 12 A creator of an intellectual property applies his mental capabilities and exercises best of his energies and skills as his productivity for his own professional and financial growth on the one hand, and for the benefits of the consumers, customers and masses at large on the other. He takes risks and makes the precious investment of both time and money to conceive new ideas and to present it before the world in an innovative and refined way. It is therefore his services must be acknowledged and appreciated. The protection and preservation of the rights of the innovator is one of the most significant modes of encouraging his efforts. Thus, the protection of such property is the basic right of the producer, and no one is allowed to use such property in his name without the permission of the original devisor. Moreover, wrong use of a specific trademark containing low quality product launched in the market may jeopardise the good name and fame of an organisation. Further, the misuse of trademark can prove dangerous and harmful for the people, especially in case of a medicine company. Fake medicines, with the trademark of a reputed industry not only take life of consumer, but also it can endanger the producer's repute at stake. "The fake medicines, Kelly observes, "contain too much, too little or not active ingredients, the wrong ingredients or high levels of impurities, contaminants and even toxic substances". (Kelly, 2004 p 4) ICANN and its dominion institutions UDRP, Nominet and others are the authorities to approve the names, titles, logos, numbers and marks of every new domain established for a personal or commercial purpose. The main objective behind the formation of these authorities was the free, fair and transparent allotment of domains, and the unbiased and impartial resolution of the disputes regarding name and mark of the domains. The organisation has undoubtedly maintains the credit of arbitrating hundreds of cases successfully, which were taken to them for resolution. Its adoption of an arbitration system in late 1999 has proved to be an effective tool against cyber-squatters; its online election of five Board Directors by an at-large membership from around the world has demonstrated its commitment to inclusion and transparency. 12 Though, ICANN has won good name and fame in respect of internet disputes resolution, it has also earned the repute of working as a prejudiced organisation. It is particularly the case while dealing with the parties belonging to non-US country. Hence, the organisation has always supported a US corporation while settling its dispute with the non-US organisation, which is a black mar on the very face of the authority, and has challenged its fame as an unbiased arbitrating authority. If UDRP or other authority assigns the same or similar domains to more than one corporation, it is responsible for putting the future and business activities of at least two companies and countless customers of these corporations at stake, which is criminal negligence in the eyes of the statute of law. Sections 418, 419, 420, 421 of Cr. P.C., and Sections 11 to 18 of C.P.C. clearly declare such acts, committed by an individual or an organisation, as the outcome of fraud, coercion, undue influence and misrepresentation, which is liable to be tried in the court of law. Serious negligence and undue favouritism cause grave mental torture and push the people towards the expensive and lengthy legal procedure, which is strictly against the very formation and survival of ICANN. It is therefore, the law experts suggest that ICANN should not be given too much rights of taking all decisions solely regarding the allotment, cancellation and settlement of disputes. John Gilmore is of the opinion: The UDRP should not create any rights for trademark holders that the law does not already provide to those holders. It is the job of legislatures to debate adjustments among the rights of citizens. 13 Hence, the statement that delegating so much powers to UDRP and Nominet is just like appointing foxes for the look after of chicken, i.e. it is highly disgusting and useless to surrender all legal powers of dispute resolution to ICANN and its subordinate institutions. 4 http://www.keytlaw.com/urls/udrp.htm#Is%20the%20Dispute%20Resolved http://www.adr.eu/_inc/en/resource/press_release_pilot.pdf http://www.bitlaw.com/internet/domain.html http://www.marketme.com/2008/03/20/8-worst-company-domain-names-ever-created.html 5 LIST OF REFERENCES http://personal.law.miami.edu/'froomkin/articles/udrp.pdf http://www.icann.org/en/udrp/udrp.htm6 http://www.internet-law-library.com/pdf/CybersquattingArticle.PDF http://www.witsa.org/papers/ICANNstate.pdf http://www.nominet.org.uk/digitalAssets/30363_DisputeResolutionServiceBooklet.pdf 7. CADNA Report on Domain Drop Catching 8 http://tcattorney.typepad.com/domainnamedispute/2008/01/cadna-report-on.html http://www.bileta.ac.uk/Document%20Library/1/Does%20the%20Need%20for%20Internet%20Governance%20Justify%20ICANN%E2%80%99s%20Anti-competitive%20Behaviour.pdf Read More