Let’s first discuss what exactly a website is?
According to the United States Copyright Office, a website is “a web page or set of web pages, that includes a home page, which is located on the same computer or server (further, pinned together on that computer or server) and prepared and maintained as a collection of information of a person, group or organisation . Moreover, a website is a structure containing content.
Intellectual property rights exist in a website and can be protected through various intellectual property laws to protect the original content and owner’s rights. Different ideas could help protect websites and their content against any sort of violation through intellectual property laws.
Moreover, intellectual property rights are the privilege given to persons over the novel/unique creation of the work generated through their minds. They usually provide the creator with an exclusive right to use their creation for a certain period. A patent gives legitimate protection to a new invention, an application of discovery, a new idea, or a helpful concept. Copyright provides legal protection from copying for any creative work. A trademark offers legal rights to use symbols, particular words, logos, or other markings that indicate the source of a product or service. Intellectual property rights protect the company’s inventions, processes and concepts, crucial for maintaining brand and competitive edge. In short, it is a collective term for different kinds of intangible assets, including trademarks, copyrights, patents, etc. These assets are intangible but can be very valuable since they enjoy legal protection.
Intellectual property covers a wide range of topics that could be protected in your website from any violation by intruders mentioned below:
Copyright: Most of the website, including the text, design, graphics, data, website layout and any music, broadcasts, software and images, are protected under the Copyright Act. According to Section 14 of the Copyright Act, “copyright” means the exclusive right given to the creator to make copies, print, perform, publish, record or film artistic, literary, or musical material for a limited time. It is a legal right that protects a website and its content from copying others. The website owner uses this right for a limited period, and only the owner can use their material; nobody else has this authority during that time.
In the case of sound recordings, cinematograph films, anonymous and pseudonymous publications, photographs, posthumous publications, and works of international organisations, 60 years is counted from the date of publication.
If anybody tries to use any copyrighted content for their own benefit, it will amount to copyright infringement. In such cases, the owner or the originator may claim compensation in the ways given below:
Civil Remedies for Copyright Infringement: A copyright owner may take a legal step against anyone who infringes the copyright. The copyright owner is entitled to the remedies by way of damages, injunctions and accounts.
Copyright Infringement is a Criminal offence: Anyone who knowingly infringes or abets copyright infringement in any work commits a criminal offence under Section 63, Copyright Act, 1957. The punishment for infringement of copyright is imprisonment for a minimum of six months with a fine of a minimum of Rs. 50,000/-. In the case of a subsequent or second conviction, the minimum punishment is imprisonment for one year and a fine of Rs. 1 lakh.
Patents: A patent is a grant for an invention by the Government to the inventor in exchange for full disclosure of the invention . Further, the patent is an exclusive right granted by law to applicants/assignees to use and exploit their inventions for a limited period (generally 20 years from filing). The patent holder has the legal right to exclude others from commercially exploiting his invention for the duration of this period. If any software is new and involves some innovation or any inventive step and has a technical effect, it could be qualified to be protected by Patent.
Term and Date of Patent
The term of every patent will be twenty years from the date of filing of the patent application, irrespective of whether it’s filed with provisional or complete specification. The date of the patent is the date on which the patent application is filed. The patent term in the International applications’ case, filed under the Patent Cooperation Treaty designating India, will be 20 years from the International filing date accorded under the Patent Cooperation Treaty. The patent will have ceased to effect on the expiration of the time period prescribed for the payment of any renewal fee if that fee is not paid within the stipulated time.
Infringement of Patents
Infringement of a patent consists of the unauthorised making, importing, using, offering for sale or selling any patented invention, including patented software within India.
Remedies against infringement of a patented invention
- Interlocutory Injunction: At the start of a trial, a patent owner can make a request for an interim injunction to restrain the defendant from committing the acts complained of until the hearing of the action or further orders. A permanent injunction is given based on the case’s merits at the end of the trial.
- Relief of damages: An award of damages focuses on the losses sustained by the claimant. A patent owner has entitled to the relief of damages as compensation to the patentee and not a punishment to the infringer.
- Account of profits: Account of profits focuses on the profits made by the defendant, without reference to the damage suffered by the claimant at the defendant’s hands. The purpose of the account is to prevent the defendant’s unjust enrichment by using the claimant’s invention. The patent owner may also opt for profits where he has to prove the use of the invention and the amount of profit derived from such illegal use.
Trademark: A trademark in simple language is a visual symbol which may be a word signature, device, name, label, a combination of colours or numerals used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from the different undertaking. The owner of a registered trademark will be the person who is registered as the proprietor of it. Ownership of unregistered trademarks will vest in the person who builds up sufficient goodwill or reputation in that mark through use. Therefore, the customer will want to ensure that, for certainty, any logos and get-up that a developer or creative agency designs are registered as trademarks in the customer’s name and that the customer actively uses, in the course of trade, the relevant trademarks as marks in respect of their products or services (which they will be doing by having the trademarks prominently displayed on their website).
Offences & Penalties
There are mainly two classes of Offences relating to Trademarks:
- Falsification of Trademark
- Falsely applying the trademark to goods or services
The punishment for the above offences shall not be less than six months imprisonment which may extend to three years, and a fine which shall not be less than 50,000/-, but may extend to Rupees Two Lakhs. Wherever the court proposes a lower punishment than the minimum, it has to record adequate and special reasons for the same.
There shall be an Imprisonment of not less than one year, which may extend to three years and a fine which shall not be less Rupees One lakh but may extend to Rupees Two Lakhs. The court can propose a lower punishment than the minimum only after recording adequate and special reasons for the same. However, second and subsequent offences shall be more severely punished.
What can not be protected on the website?
There will be many, if not thousands, of websites that resemble each other. They will all use the same source code. If you used a template to create your website, it would be tough to prove copyright infringement.
You might be able to prove infringement if the offending party copied your logo, trademarks, inventions, your copy and paste your website content.
Conclusion: Intellectual property rights are the most crucial company asset and are often the most valuable company asset. Any company currently operating or considering doing business on the Internet should review its intellectual property rights and ensure that they are fully protected.
- U.S. Copyright Office. “Copyright Registration of Websites and Website Content.” Accessed Feb. 6, 2020
- Meaning of copyright.—For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:—1[14. Meaning of copyright.—For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely\:—”in the case of a literary, dramatic or musical work, not being a computer programme,, to reproduce the work in any material form including the storing of it in any medium by electronic means, to do any of the acts specified in clause (a); 2[(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: 2[(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme\:” Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.], to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate the work to the public…to communicate the sound recording to the public. Explanation.— For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.]
- Sec.2(1)J) of Patent act defines Invention as a new product or process involving an inventive step and capable of industrial application
- Trademark is defined under section 2 (zb) of Trademarks Act, 199