Police, Intellectual Property Rights and Technology

By Meghna Bhaskar, Legal Research Assistant, Goeman Bind HTO

The author, Meghna Bhaskar, is a first year student of law at National Law University, Delhi. She is enrolled in the B.A LL.B (Hons.) 5 year programme and will graduate in the year 2022. She currently holds the position of research assistant at Goeman Bind HTO, a Think Tank.

Anyone can quote from this paper but due acknowledgement and reference should be given to Goeman Bind HTO, Think Tank.

This paper is approved by Dr. Neeti Shikha, Expert & Leader with Goeman Bind HTO.

There is no lie in the proposition that the world is dynamic – it shifts and alters its tangible and intangible territories to suit the time and space in which it exists. Over the decades, we have transgressed at an unprecedented pace and this has caused changes of voracious magnitudes. Wars have been fought, discoveries have been made, reforms have been introduced, political and economic paradigms have come and gone like the winter sun and all these variations have commanded their due ‘acknowledgment’ from man.

The coming of the Internet in the 1990s changed the way man viewed the world. Everything that had a touch of reality to it, now also existed behind a glass screen in the form of ‘virtual reality’. Printed books took the form of e-books, retail marts found themselves replaced by e-commerce, written journals gave way to blogs and the world switched from an ‘offline’ mode of living to an ‘online’ one.

However, the coming of the World Wide Web and its rapid evolution over the years had a flip side of ambiguity to it too. Looking beyond the Internet as a boon for the development of human beings, a realization dawned upon all, that the Internet was a vast and infinite space that was unprotected, arbitrary and highly unregulated. From the perspective of the law, it primarily put one aspect of law into the grey – Intellectual Property Rights.

Intellectual Property Rights are exclusive rights conferred upon a person for a stipulated time period to protect the said person’s intellectual creation from exploitation.[1] This creation can comprise of a vast array of work ranging from inventions, literary and artistic works, symbols and names to images used in commerce.[2]Intellectual Property Rights regulate the sale, borrowing and reproduction of the content falling within the ambit of a person’s intellectual property and protect it in a way similar to any other property that a person owns. These rights are legal rights which protect what is non-exhaustive in nature.They are akin to property rights as their aim is to protect certain intangible property rights which have been classified into 5 sub-heads[3] –

Copyright
Trademark
Patent
Geographical Indication
Industrial Design
Since IPR forms an increasingly important part of our commercial lives, its enforcement has garnered much attention across the globe. As touched upon earlier, the advancement in technology has given way to an increased cross-border movement of intellectual property and its regulation and enforcement has thus, fallen prey to the variations in IPR policy practiced across various countries. For example, when a certain person’s literary creation is published in countries abroad, it brushes with the IPR regime in those foreign lands, which may not be in tandem with the regime followed in the creator’s home country. The problem almost always arises when the level of IPR protection is of a lower level than what the bearer of the intellectual property rights enjoys in his or her country. Thus, in cross-border flow of Intellectual Property, it is important to see the local IPR policies in the country of the acquirer and how much intellectual-capital intensive the industries are.[4] Attempts, however have been made to harmonize the IPR regimes into a unified standard and this was seen through the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement which was entered into by the member nations of the World Trade Organisation, making the agreement the most comprehensive and expansive multilateral agreement on intellectual property. TRIPS sought to lay down certain basic and minimum standards of intellectual property rights’ protection and enforcement.

Apart from cross – border enforcement of intellectual property, certain domestic mechanisms also pose a threat to the sanctity of these rights and are in dire need of reforms. Plagiarism and piracy plague most countries, including India, and have put the interests of the IPR bearers in grave peril. It is important to realize at this point, that the local IPR regime of a country not only affects all sectors of the economic hierarchy, but also affects the country’s image as an investment port. Therefore, jeopardizing one’s intellectual property due to a vacuum in the civil or criminal procedure for adjudicating IPR is definitely a precarious premise[5].

The Intellectual Property regime is a binary system comprising of a statute component and an enforcement component. The two co-exist and are interdependent on the other and a balance must be struck between the two. However, in some countries, one leg is stronger than the other – some focus more on the theory than the procedure while others have loopholes in their laws. Albeit, more often than not, it is the enforcement component that gets neglected. The policing organizations, the statutes, the nature of the judiciary and technical expertise are a few institutions that are involved in the process of enforcement and are in compelling need of reform. [6]

This paper aims to trace the policing of Intellectual Property Rights across the world by taking two countries as part of its sample space – India and Singapore. These countries have been handpicked due to their policy advancements as well as the commitment that the countries have exhibited with respect to innovation and IPR protection. [7]

Technology And Intellectual Property Rights

Technological advancement was and is probably the single most powerful force that shook the IP regimes worldwide, the way it did. Technology made even the most stringent of IPR systems as porous as sponge. The Internet and the World Wide Web were new creations and no one knew how to stabilize their IP regimes in the face of an unregulated platform that was freely violating all its norms. It was as though the world had been caught off guard. Technology gave birth to smartphones, laptops, pen drives, CDs, VCDs and a plethora of other devices that became the conveyor of the most commonly used IPR jargon – Piracy. The coming of these new-age devices made it easier, faster and cheaper to violate and duplicate copyrighted material such as audio and video files. Let us now look into this anomaly by understanding the enforcement mechanisms in India and Singapore, the problems technology has posed for their intellectual property regime and how they have tackled this exposure.

India

Having a strong Intellectual Property regime is of immense importance, especially for a country like India which is trying to make its mark on the global map. This is because the stability of a country’s IP system is directly proportional to the country’s ability to attract foreign investment. The more secure investors feel in investing or bringing technology to our country, the more our economy boosts. However, India has not been topping the charts in IP indices of late and has been proved to have a regime quite contrary to the one it has claimed it fosters. Recently, India ranked 43rd out of 45 countries in the 2017 edition of the International Intellectual Property Index conducted by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC)[8]. The reasons behind India’s poor IP regime are many; however most of them are apparent in its enforcement mechanism and lack of evolution in its policies and strategies.

In India, the enforcement of IPR is looked after by all the three organs of the Indian Government – Legislature, Executive and Judiciary and has a well-established statutory, administrative and judicial framework to safeguard Intellectual Property Rights.[9] Redressal for any breach of IPR, under Indian laws, can be sought through three portals –

  1. Civil action
  2. Criminal action
  3. Border Enforcement Measures

Enforcement within India’s IP regime has one certified advantage – Civil and criminal actions against the same act can be pursued concurrently. Civil remedies provide for interim injunctions to dispense immediate relief to the aggrieved party and to protect their intellectual property rights till the final judgment is passed. This provision is a boon for the plaintiff since Indian courts are always overburdened with cases and it may take years for a case to be decided. To add to this problem, is the fact that intellectual property cases lie at the lowest priority of economic cases and are not given due importance. However, criminal remedies are considered more feasible for the simple reason that they not only penalize the wrongdoer, but also act as a deterrent for the entire society – A bedrock principle of criminal law. [10]

A Civil action attracts the following remedies under Indian laws[11]:

  1. Permanent injunction
  2. Interim injunctions
  3. Damages
  4. Accounts and handing over of profits
  5. Anton Pillar Order
  6. Delivery of goods/packing material/dies/plates for destruction

Criminal action, on the other hand, involves the filing of  First Information Report (FIR) or filing of a criminal complaint with the magistrate for granting a warrant to the police for search and seizure of infringing material from the premises of the defendant (accused). Both, the Copyright as well as the Trademark act provide for criminal action as a means of redressal. Section 63 of the Copyright Act, 1957 which deals with the offence of infringement of copyright, provides for imprisonment for a term not less than 6 months, which may extend to a maximum of three years, coupled with a fine ranging between fifty thousand to two lakh rupees.[12] The Trademark Act entails the same specifications with an additional provision for enhanced punishment u/s 105 of the Act.[13]

Indian laws have a rather flexible approach when it comes to intellectual property. This can be seen by the concept of ‘John Doe’ orders, that is, initiating a case against unknown persons. This gives considerable powers to the plaintiff to obtain ex parte orders and search and seizure warrants from the magistrate without going through the trouble of finding the distributors of the infringing material.

The Indian IPR regime also provides for border control measures for the enforcement of IPR. Section 11 of The Indian Customs Act, 1962[14] enlists certain goods whose importation and exportation is prohibited.[15] This section provides derivative powers to the government to prohibit importation and exportation of goods that infringe the intellectual property rights of a person and confers powers to the custom officials to search and seize any goods that they suspect to be counterfeit or contraband in nature. Further, the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 which are in alignment with the standards laid down in the TRIPS agreement confer powers on the custom officials to enforce intellectual property rights over the goods mentioned u/s 11 of The Customs Act, 1962.[16]

After establishing the three main ways of redressal within the ambit of India’s IPR regime, it is important to see how they amalgamate with the protection of intellectual property in the Cyberspace. After losing considerable potential investment over the years, India has now begun to realize the tangents that emanate from intellectual property and the repercussions it entails if not regulated properly.

The coming of technology has made the distribution and reproduction of protected works a rather easy task that requires no expertise and entails negligible cost.  However, there is a paradox here. Just like some diseases get cured by the very bacteria that cause it, technology is the cure to the problems it has caused in IP regimes across the world. If it has become easy to reproduce work through technology, it has also become easy to trace the source of such wrongdoers through the very same technology.

Infringement of Intellectual Property through technological means, in India, falls within the larger ambit of cyber crime. Cyber crimes can be defines as – “Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm, or loss, to the victim directly or indirectly, using modern telecommunication networks such as Internet (networks including but not limited to Chat rooms, emails, notice boards and groups) and mobile phones (Bluetooth/SMS/MMS)”.[17] Cyber crime is primarily divided into three categories[18] –

  1. Crime against government
  2. Crime against persons
  3. Crime against property

IPR infringement falls under the last category of (Cyber) Crime against property, which also includes online gambling, phishing and credit card frauds within its ambit.

There are various ways in which such (Cyber) crimes against property crime can be committed, Cyber squatting being one of them. Cyber squatting refers to the practice in which a person registers a domain name with the intention to infringe and gain wrongfully from another’s registered trademark[19]. Such domain names are then sold to the holder of the original trademark at very high prices since the latter would not want the goodwill of his brand name to go to the wrongdoer’s domain.Yahoo! Inc. v. Akash Arora & Anr.[20]was one of the first cases of Cyber Squatting reported in India wherein the defendants were operating under the trademark “Yahooindia.Com” which was very similar to the plaintiff’s trademark “Yahoo.com”. The court found for the plaintiff and held that the degree of similarity was very high and could cause confusion in the minds of the people. Subsequently, TheUniform Domain Name Dispute Resolution Policy was introduced in 1999 to look into all such disputes of abusive registration of domain names.[21]

Software Piracy is another form of cyber crime that poses a serious threat to intellectual property rights in India. Software Piracy refers to the copying or use of computer software in violation of its license (commonly referred to as an ‘End user licensing agreement’).[22] Software Piracy is of many types[23] –

  1. Downloading it from the internet instead of purchasing it illegally
  2. Making duplicate copies of the original software and distributing it
  3. Software counterfeiting wherein duplicates are represented as the original software and sold.

The Copyright Act, 1957 and The Information Technology Act, 2000 are the primary legislations to check on Software Piracy. A software is considered to be intellectual property and is defined as a ‘computer programme’ under section 2(ffc) of the Act. Further S. 63 which deals with offences under the Act, prescribes a punishment with imprisonment between six months to three years and fine ranging from fifty thousand rupees to two lakh rupees.  S. 63(A) provides for enhanced penalties for subsequent convictions for the same offence. S. 63(B) deals with the use of infringing copies of computer programmes where the defendant has knowledge of the infringing nature of the programme. Such an offence attracts imprisonment ranging from 7 days to three years and a fine between fifty thousand to two lakh rupees. [24] The IT Act, too punishes those who are using the infringed copies of the copyrighted software and those making pirated copies of the software under Section 66Act. Those providing assistance to such acts of illegal downloading, copying or selling of the software can be punished under Section 43 of the Act.[25]

Apart from the legislative support that IPR relates cyber crimes are getting, the Government has taken administrative steps to curb the problem. On 13thMay 2016, the Union Cabinet approved India’s first Intellectual Property Rights (IPR) policy for awareness, creation, commercialization, protection and enforcement of Intellectual Property in India which included ‘Enforcement and Adjudication’ – a sector of the IPR regime which is the root cause of almost all problems – as one of its seven objectives.[26]

In furtherance of this objective, The Ministry of Human Resource Development, under the scheme of Intellectual Property Education, Research and Public Outreach (IPERPO) set up eighteen IPR Chairs in various universities and institutes in the country to harness their potential for the development IPR Education, Research and Training. The 18 Chairs are divided in the following manner – Five (5) IPR Chairs are in Universities, five (5) IPR Chairs are in IITs five (5) IPR Chairs are in National Law Universities and three IPR chairs in IIMs (Kolkata, Bangalore and Ahmadabad).[27]

The Indian IP regime also provides for Cyber Crime Cells that fall under the ‘special units’ category of various police departments and look into intellectual property crimes. Ahmednagar police and Nagpur Gramin (Rural) police, both provide for such cells.[28][29]

Although Indian laws have matured in this regard, a huge part of the battle is yet to be won. Intellectual property matters still do not get the priority that other economic offences do. Further, massive lacunae exist in India’s IP policies and laws and thus, a uniform regime is yet to be established in India as far as intellectual property is concerned.

Singapore

In the year 1965, when Singapore split from Malaysia, its economy was of the nature of an undeveloped country’s and intellectual property was in its nascent stages. Decades later, the island city-state finds itself ranking amongst the top in indices and boasting a GDP of US $52,960[30].  From being deemed the “Piracy capital of the world” United States Senator Patrick J. Leahy in 1984[31] to ranking 8th in the International Intellectual Property Index in 2017, Singapore has advanced by leaps and bounds. There is not even a shadow of doubt in stating that Singapore has one of the most extensive and comprehensive IPR regimes in the world – However, it was not always so.

A British colony for the longest time, Singapore merged with Malaysia in the year 1963. The unrest, however, persisted and it culminated in Singapore attaining full and fledged independence in 1965. On looking into the IP laws prevalent in Singapore a short while after its independence, one finds nothing but the remnants of British law. Much as the British influenced and continue to influence India’s laws (erstwhile British colony), Singapore’s entire IPR regime was erected on the laws followed in the lands of its colonial rulers – the English law. There was a strong sense of neglect towards Intellectual Property  which was apparent since whatever protection of such property existed in Singapore, was extended by the United Kingdom. The intellectual property was in most cases, first registered in the UK, and then re-registered in Singapore, albeit the Registry in Singapore did not carry out any further procedure and relied on the decision of the British offices. [32] Singapore had enacted only two legislations for IPR protection, namely –

  1. The Copyright (Gramophone Records on Government Broadcasting) Act, 1968
  2. The Patents (Compulsory Licensing) Act,1969

On the other hand, it conveniently relied upon the following key British legislations for the larger chunk of its IPR regulation and enforcement[33]  –

  1. The Copyright Act, 1914
  2. Registration of U.K. Patent Act, 1937
  3. Registration of U.K. Designs Act, 1938
  4. K. Trademarks Act, 1938

Skeptical of international IP conventions such as the TRIPS agreement due to the undue domination and monopoly of the developed countries, Singapore, a third world country and an erstwhile colony, refused to become a subject of international power play. However, it was in the 1980s that Singapore decided to revamp its IPR regime, primarily to foster a high-end software industry. [34] Singapore wanted to see a positive economic trajectory and it had learnt that an IP-conducive environment would help it catch up with the latest developments in the field of science, medicine, sound, film etc. Finally, in 1987, Singapore passed its Copyright Act in a bid to attract American software companies and to benefit from the incentives the US had given to it, to implement the act.[35]

The passing of the Copyright Act kick-started proper enforcement of Intellectual Property in Singapore. By 1995, Singapore had joined the World Intellectual Property Organisation (WIPO) and was also a member of the World Trade Organisation in order to implement the minimum standards of IPR protection enshrined in the TRIPS Agreement. It also became a signatory to other international copyright agreements, including the Paris Convention, the Berne Convention, the Patent Cooperation Treaty, the Madrid Protocol, and the Budapest Treaty. [36]

By 2001 Singaporean IP laws were in line with the minimum standards laid down in the TRIPS Agreement and it had long forgotten its inhibitions of interfacing International Law. However, Singapore continued to flash in the United States’ Special 301 Report.[37] One of the reasons for this was the acute piracy that existed in Singapore at the time. To understand this, we must take a look at the enforcement mechanism prevalent in Singapore. There are three main avenues of enforcing one’s intellectual property rights in Singapore –

  1. Civil Litigation
  2. Criminal Litigation
  3. Customs

Civil Litigation is the sought after avenue for redressal in case of patent, trademark and copyright infringement.

Section 67 of The Patents Act [38] allows the court to:

  • Grant an injunction restraining the defendant from any apprehended act of infringement or;
  • Pass an order for him to deliver up or destroy any patented product, article or material in relation to which the patent is infringed or product is compromised or;
  • Grant damages for the infringement or;
  • Ask for an account of the profits derived from the infringement and for a declaration that the patent is valid and has been infringed by the defendant.

The Trade Marks Act (Chapter 332)[39] too, provides remedies of injunctive relief and financial compensation. It is important to note that the laws in Singapore also extend protection to unregistered trademarks as well, albeit the standard of establishing and proving such a claim is substantially higher.

Similarly remedies are found under Part V of The Copyright Act (Chapter 63) for copyright infringement. However, it is rather interesting to note that Copyright infringement is considered to be a Strict Liability tort.[40] This means that the intention of the wrongdoer while committing the offence is immaterial. This allows a considerable ease in the enforcement as the plaintiff does not have to go through the arduous task of establishing the defendant’s intention.

Criminal Litigation is primarily applicable to the Copyright and Trademark Act. This allows the aggrieved party to approach the court for levying criminal charges and penalties on the wrongdoer.  For example – Conviction under the charges of the counterfeiting of a trademark and the false application of a trademark can mandate jail time of up to 5 years or a fine not exceeding $100,000 u/s 136 of the Copyright Act[41].

Another intriguing enforcement technique adopted under the Singaporean IPR regime is the dedicated Intellectual Property Rights branch under the Criminal Investigation Department – The premier investigation agency for criminal matters in Singapore.[42] The Intellectual Property Rights Branch, which is the main IPR enforcement agency, is one of 6 branches under the Specialized Crime Division of the CID and has been a path-breaker for IPR protection in Singapore. The branch has helped curb the biggest threat to IPR in Singapore – Software piracy. IPRB mainly conducts raids based on anonymous tips, agency referrals and monitoring intellectual property[43]. According to data released by The Intellectual Property Office of Singapore, a total of 254 copyright and trademark violations related raids were carried out in 2012 and property worth 2,023,057 SGD was seized. [44]

Customs form an increasingly important part of IPR regulation and enforcement in Singapore, as they do in almost every country in today’s time. Singapore has emerged as a very important port and a major transit point for imports and exports between Europe and Asia. The high traffic of goods makes it vulnerable to counterfeit goods that breach the intellectual property rights of the holder of the original intellectual property.

Customs refer to certain border and trade enforcement measures in order to prevent any good that is infringing any form of intellectual property, from being imported into Singapore. Singapore Customs has the authority to detain any good that is being imported, exported or re-exported, which is in contravention with or suspected to be in contravention with, the intellectual property rights of another.[45] Such goods can be detained under the authority conferred upon the custom officials or when the owner of the copyright or trademark serves a written notice to the Director-General of Customs compelling the Director-General of Customs to take appropriate action against such goods and the wrongdoer.[46]Singapore Customs working harmony and tandem with the Intellectual Property Rights Branch of the Singapore Police Force to curb piracy within the city-state. They also conducts training sessions with right holders to educate them about various counterfeit products, as well as to educate officers on how to differentiate genuine products from counterfeit products.[47]

Further, Singapore is in the process of formalizing the EU-Singapore Free Trade Agreement (ESFTA) with the European Union. Singapore is the European Union’s largest trading partner in the Association of South-East Nations and its 17th largest trading partner (trade in goods) overall[48]. The FTA will help create an environment for increased cooperation between Singapore and the European Union, when it comes to customs and nabbing counterfeit goods[49]. Cooperation here, primarily refers to access to information and goods that are suspected to be in breach of intellectual property rights.

Apart from the Singapore Police Force and Singapore Customs,tThe Intellectual Property Office of Singapore (IPOS) is another enforcement institution that facilitates the protection of Intellectual Property in Singapore. Established under the Intellectual Property Office of Singapore Act, 2002, the IPOS is a statutory body that falls under the Ministry of Law. IPOS handles the administrative aspect of Singapore’s IP regime and promotes the use of intellectual property through its outreach programs which aim at public awareness and educating the right holders about their intellectual property rights and its relevance in today’s world. Further, The Intellectual Property Office also operates the national IP registries, takes part in global discussions on IPR enforcement and also works towards building expertise in a bid to enhance the IP ecosystem in Singapore. [50]

Whilst dealing with the ravages of technology in the IP world, Singapore, like many developing countries, faced the inevitable problem of striking a balance between applying restrictions for protection and at the same time staying liberal. Restrictions and barriers of any kind are not good for the economy since they hinder free flow and movement of resources. Thus, instituting too many online restrictions in the form of encryption could make it tough to balance public welfare against the rightful profits of the IPR holders.

Going back to where the topic started, the 2001 Special 301 Report did not feature Singapore on its list. This goes on to show that whatever measures Singapore took over the years were, though not drastic, but enough to distance it from the red zone of IPR-backward countries!

The Way Forward

Even after suffering great economic losses due to their poor IP regimes, India and Singapore have not made any significant alterations in their IP mechanisms. There is a considerable underestimation by both countries of the magnitude of the problems that technology is posing for Intellectual Property. The need of the hour if for such countries to synchronize their international obligations with their domestic laws in a bid to seal the glaring lacunae in their existing policies and create a more widespread approach to tackle IPR. India must institute special commercial courts to looks into IPR matters and make use of its rich history of ‘Alternate Dispute Resolution’ to cater to such matters. Arbitration, an ADR method is a convenient method for resolution of such disputes and is already being employed in Singapore, which is one of the most preferred seats of arbitration worldwide. All in all, an awakening can be seen world over about the importance that intellectual property holds, although, concrete and path-breaking actions are yet to be taken in this regard.


Bibliography

  1. World Trade Organisation, “Amendment of the TRIPS Agreement” Available at – https://www.wto.org/english/tratop_e/trips_e/amendment_e.htm[Accessed – 8th July, 2017]
  2. Robert L. Ostergard Jr., “The Measurement of Intellectual Property Rights Protection”, Journal of International Business Studies, Vol. 31, No. 2 (2nd Qtr., 2000), pp. 349 – 360 Available at – http://www.jstor.org/stable/155642 [Accessed – 11th July, 2017]
  3. Souvik Ganguly, Internatinal Legal Regime on Protection and Enforcement of Copyright and Challenges of the Internet, in A.K. Koul & V.K. Ahuja ed. Law of Copyright: From Gutenberg’s INvention to Internet, (Law Faculty, Delhi University Publication, 2001).
  4. World Intellectual Property Organisation, “Global Innovation Index 2017: Switzerland, Sweden, Netherlands, USA, UK Top Annual Ranking”, Geneva, June 15, 2017. Available at – http://www.wipo.int/pressroom/en/articles/2017/article_0006.html [Accessed – 10th July, 2017]
  5. The Straits Times, “White paper on Malaya” (1946, January 26), p. 2. Retrieved from NewspaperSG; Tan, K. Y. L. (Ed.). (1999)
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