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IP Issues in Cyberspace: A brief Study on Framing



Abstract


Cyber Crimes are one of the fastest growing crimes in the world. While the Act has been successful in setting down the frame work of regulations in Cyber Space and addresses a few pressing concerns of misuse of technology, it suffers from a few serious lacunae that have not been discussed, i.e. Intellectual Property issues. Intellectual property means knowledge or information in any form which has a commercial value and Intellectual property rights can be defined as a mix of ideas, inventions and creations i.e. Copyright, Patent, Trademark, Design are some of the types of Intellectual Properties. These things are creations of the human mind and hence called Intellectual Property. Information Technology Act 2000 does not mention a single word about Intellectual Property protection while Infringement of IPR is one of the most challenging area in cyberspace. As well as Copyright and Domain names violations do occur on the internet but Copy Right Act 1957 & Trade Mark Act 1999 are silent on that which specifically deals with the issue. Therefore, we have no enforcement machinery to ensure the protection of domain names on net. Time has come where we must enact special legislation for the protection of Intellectual property in cyberspace.



Introduction


The object of the copyright is to encourage authors, composers, directors to crate original works by way of providing them the exclusive right to reproduce, publish the works for the benefit of the people. When the limited right i.e. term of copyright is over, the works belong to the public domain and anyone may reproduce them without permission. The copyright subsists in original literary, dramatic, musical, artistic, cinematographic film, sound recording and computer programme as well. copyright serves a variety of industries including production and distribution of books, magazines and newspaper, media of entertainment that is dramatic and musical works for performances, publication of musical works and cinema, broadcasting etc. etc. copyrights being Intellectual Property travel from country to country more easily and quickly than other kinds of property. Technological progress has made copying of copyright material easy and simple. Consequently, the control of copyright infringement has very difficult and often impossible. Books, recorded tapes or video cassettes of films or computer programmes can be taken from one country to another without any difficulty and thousands of copies can made from it and distributed. Unauthorized home taping of radio and television programmes has become rampant all over the world.



When Shall the Copyright Deemed to Be Infringed?


a. When a person without a license granted by the owner of a copy right or by registrar of copyrights under Act does-

i. anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright;

ii. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright or


b) when any person

i) makes or sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire or

ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright; or

iii) by way of trade exhibits in public; or

iv) imports into India


In all above-mentioned cases copyrighted work shall be considered as infringed. The software copyright owner will have to prove the deceptive similarity, prima facie case & irreparable loss to claim the damages from infringer.



What is Framing?


Web browsers allow Web authors to divide pages into “frames”. A frame is an independently controllable window on a Web site through which pages from another Web site can be viewed. Since it is possible for a site to call a frame’s contents from a different location, a programmer might “frame” another’s Web content beneath his own navigation or banners. This allows him to use creative content owned by another entity to sell banner advertising on its on site. A typical use of frames is to have one frame containing a selection menu in one frame and another frame that contains the space where the selected (linked to) files appear



Legality of Framing Under Indian Law


As in linking and inlining one has to turn to section 51 read with section 14 of the Copyright Act, 1957 to test the legality of framing. The person who frames some other site’s content on his site is not causing any direct reproduction of the copy righted content. This is because the framer never copies the pirated content; instead merely provides a visiting browser with instructions to retrieve the content, which is then incorporated into the overall page on the user’s site.


Thus, the only person who copies the content is the final user who never comes to know that his browser is fetching different elements from different sites. Also, the framer is not directly issuing copies of the work nor communicating or distributing the work to the public as the user’s browses is actually fetching the content directly from the owner’s site. But he can be said to be aiding in such communication and distribution


Section 14(a)(vi) grants the right of adaptation only to the owner of copyrighted work. The framing site could take some elements from the framed site’s multimedia settings and create its own, thereby affecting the right of making a derivative work of the framed site because taking some elements from the multimedia setting and combining them with some other could well fit into the definition of adaptation. So, derivation and adaptation rights do come in picture vis-à-vis framing. Framing brings in the question of moral rights as well. Section 57(1) of the Copyright Act, allows the copyright author to claim authorship of the work. In case of framing the user is confused about the original source and hence may never come to know about the author. The user may never know from where different elements of the site have emanated. The creator of a frame does not literally “copy” the contents of the framed page but only directs the user’s browser to summon content from another Web site and show the same along with the content of the framing site. Since the URL of the framed Web page does not appear on the screen, the user accessing a framed site may not perceive the site as being framed and may attribute the appropriated material to the home site owner. This could implicate the right of the author to be identified as such, since the user never comes to know that he is viewing content from a different site.




Author Details: Madhav Mantri (Student, ICFAI Law School, Hyderabad)

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