TELECOMMUNICATION TELECOMMUNICATION LAWS AND REGULATIONSPROTECTION OF TELECOMMUNICA TELECOMMUNICATIONS TIONS INTELLECTUAL PROPERTY
CONTENTS
1) Introduction 2) Copyright 3) Patent 4) Trademark 5) Conclusion 6) Bibliography
INTRODUCTION
Most governments of developed and developing countries are trying to improve the overall environment for investment by firms. There are various types of regulatory and licensing controls are imposed and intellectual property is one such control but it is more lenient than the government policies and regulations that are usually laid down allowing the people to use these elements which are protected also with the added advantage of the protection of these elements being misused by protecting the works of creator of the same. Intellectual property is a very important concept of law since the newly acquired international acceptance of this subject. Patents provide a cover by protecting technological inventions and design rights of goods that are produced in a mass. Copyright facilitates long lasting rights with respect to literary, artistic and musical works. Trademark protects these works from being imitated and copying. The objective of intellectual property is to protect the application of ideas and information that have a commercial value. In this paper we will discuss how intellectual property rights an important role in protecting various components that constitute the telecommunication field.
COPYRIGHT
Copyright is immaterial property in nature. Copyright is a bundle of exclusive rights. Here, the owner can prevent anyone else from copying his work, or doing any other acts which can be done only by him according to copyright law. What can be copyrighted in case of telecommunications?
As per Section 13 of the Copyright Act, 1957, copyright subsists on a number of works but pertaining to telecommunication, copyright relates to broadcasting, and other works which may include cinematograph films or sound recordings. Under Section 2(dd), “broadcast” is defined to mean communication to the public (i) by any means of wireless diffusion, whether in any one of more of the forms of signs, sound or visual images or (ii) by wire and includes a re-broadcast. Section 2(ff) defines “communication to the public” as communication to the public in whatever manner, including communication through satellite.1 Rights of broadcasting organizations
In the amendment of 1994 , there were special rights conferred to broadcasting organisations and performers. Broadcasting organisations enjoy a special „broadcast reproduction right‟ in respect of its broadcasts which subsists for twenty five years. 2 During such period, if in the absence of license from the owner, does any person rebroadcast the program, causing the public to see or hear it with charges being collected on the same account, makes a sound or visual recording of the same or reproduction of the sound or visual recording, or rent it then, it is an infringement of the broadcaster‟s reproduction rights.3 A performer also is conferred with a special right called the „performer‟s right‟ with relation to his performance. This right exists for a period of fifty years. As given above with respect to a broadcast, it is the same case with the performer‟s right also. In case of reproduction, renting, or
1
V.K.AHUJA, INTELLECTUAL PROPERTY RIGHTS IN INDIA (Lexis Nexis Butterworths Wadhwa, 1
edn, Vol 1, 2009) 2
MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW (Eastern Book Company, 1 edn, 2006)
st
3
Ibid 1
st
recording of such performance in the absence of consent from the performer amounts to infringement. In Fortune
Films International
v. Dev
Anand and others,
the movie „Darling Darling‟ was
produced by the plaintiff with the defendant as the lead actor. The producer, the plaintiff, agreed that the defendant would be vested with copyright of the film until certain conditions were fulfilled including the payment of a certain amount of money. When the film was released in East Punjab against the terms mentioned, the defendant questioned the breach of agreement. It was decided that the agreement pertained to the film itself and not to the work of the artist.4 Exceptions to protection of rights in broadcast
If the person makes a sound or visual recording for private use such as teaching or research, then this will not amount to infringement of rights to broadcast. If there are excerpts of a broadcast used in report of current events for the purpose of criticism or news report, teaching or research then this would not amount to infringement but is consistent with fair dealing. Under Section 52 of the Copyright Act, no broadcast would be infringed if there are modifications or adaptations made in regard to that broadcast. Liability of internet service providers
The Copyright Act, 1957 does not provide anything on the internet service providers particularly, but Section51 mentions that copyright is infringed by anyone when a license is not available to such person, which has to be granted either by the owner of such copyright or the Registrar of Copyrights. Apart from this the Section 79, Information Technology Act 2000 provides for the network service providers to be exempted from the liability in cer tain cases. The Section provides that if a person who provides network service is not made liable, if he makes a third party information or data available and he proves due diligence was exercised to prevent such an offence or that the offence was committed without his knowledge then it does not become his liability.
4
DR. MADHABHUSHI SHRIDHAR, THE LAW OF EXPRESSION (Asia Law House, 1st edn, 2007)
PATENT Innovations require large resources, and industrial firms and military establishment s have become large users, owners and movers of this technology. Industrial sectors in market economies without monopolies do not have some form of centralized governance in the same way as nations and companies have. This has an impact on the governing role of IPRs in sectoral innovation systems, especially with regard to seller diffusion of new technologies through licensing, cross-licensing and other forms of technological transfer and imitation, including patent information disclosure.5 A system with strong IPR protection may result in more res ources devoted to expensive inventive and innovative R&D effort rather than to cheaper imitative effort. This need for an inventor to avoid a technological region occupied by a patent holder will not only increase the cost of making a new economically comparable invention but it also might result in inefficient technological trajectories.6 In a world in which strong patent protection in some countries coexists with weak protection in others, a country that increases patent protection should observe an increase in the inflow of foreign investment, especially in those sectors where patented technologies are used. On the issue of surge of patents in the U.S, the studies say that it does not show or mean more or less productive growth. By examining how the composition of the patent application changed, they argue that this surge in patenting reflects increased innovation-not merely taking advantage of greater laxity in patent laws. There also exists the argument, though, that this increased innovation was not due to changes in the structure of patent law and intellectual property protection, but rather to a better management of Research & Development expenditure at the firm level.7
5
OVE GRANSTRAND, INTELLECTUAL PROPERTY RIGHTS FOR GOVERNANCE IN AND OF
INNOVATION SYSTEM, Pg. 311-325, Intellectual Property Rights-Innovation, Governance, Institutional Technologies (Edgar Elgar publishing ltd,2006) 6
BIRGITTE ANDERSEN, IF ‘INTELLECTUAL PROPERTY RIGHTS’ IS THE ANSWER, WHAT IS THE
QUESTION, REVISITING THE PATENT CONTROVERSIES, Pg 126, Intellectual Property RightsInnovation, Governance, Institutional Technologies (Edgar Elgar publishing ltd,2006) 7
MICHELE BOLDRIN AND DAVID.K LEVINE, AGAINST INTELLECTUAL MONOPOLY(Cambridge st
University Press, 1 edn, 2008)
TRADEMARK
Trademarks differ from patents and copyrights because they serve to identify the providers of goods, services, or ideas. In case of web based businesses, they are protected by trademarks against unfair competition law. Technological progress is an important means of attaining social prosperity and economic gain and intellectual property is one way to reach these goals thus accelerating innovation promotion and technology growth. Most countries that protect trademarks on the basis of use also provide for registration of the trademark for more effective protection. Trademarks should not only be distinctive bu also it should be fit to cover the image of the technology developed and that the respective enterprise should have a positive intention. Registration of the trademark provides the owner of the trademark with a proof of its validity, ownership and reputation for the quality of goods or services to which the particular trademark relates. With increasing global dimensions of knowledge-based economy and the growth of knowledge based products, several challenges are appearing in the administration and management of electronic commerce trade and in totality the telecommunications sector:
Unauthorised copying of content has been major problem causing the loss of millions of dollars in the revenue for the owners of these rights because of the ease with which digital files can be downloaded;
The global characteristic of e-commerce businesses affects intellectual property in a number of ways. It makes it difficult to find the infringer and enforce intellectual property rights that are violated on the internet. It is unclear which courts will have jurisdiction over disputes relating to telecommunication systems and intellectual property. Also, laws affecting intellectual property vary from country to country, so levels of protection may be different.
Difficulty in deciding which laws to apply is a common problem, especially if the laws of the countries of the parties involved are different. Finally, even if the lawsuit succeeds, it could be difficult to enforce a judgement in another country. 8
8
SHAHID
ALIKHAN
AND
RAGHUNATH
COMPETITIVE STRATEGIES IN THE 21
ST
MASHELKAR,
INTELLECTUAL
CENTURY(Wolters Kluwer, 2
nd
PROPERTY
edn, 2009 )
AND
CONCLUSION
Thus it can be inferred from above that there is a constant need to regulate innovations and broadcasts that come under telecommunications and so that a very strict regime is not followed, intellectual property is a better option helping solve the problem of the rights of the creator of a show or a technology. The factor that these creators hold a license for a period of time and that they can grant permission to certain other people to make use of the same is controlled by the laws that are formed under the intellectual property rights. Apart from the Indian scenario, there is also a mention of the global scenario with respect to patents and trademarks to help understand or substantiate the laws that have been established under the Copyright Act, Trademark Act and the Patent Act. The laws that are being followed in India are a result of the laws that were priorly established in the U.K. But intellectual property law is a very fast evolving and progressing field lot of scope and hence there have been amendments made with respect to the current changes or evolution of the same.
BIBLIOGRAPHY
1) V.K.AHUJA, INTELLECTUAL PROPERTY RIGHTS IN INDIA (Lexis Nexis Butterworths Wadhwa, 1 st edn, Vol 1, 2009) 2) MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW (Eastern Book Company, 1st edn, 2006) 3) DR. MADHABHUSHI SHRIDHAR, THE LAW OF EXPRESSION (Asia Law House, 1st edn, 2007) 4) OVE GRANSTRAND, INTELLECTUAL PROPERTY RIGHTS FOR GOVERNANCE IN AND OF INNOVATION SYSTEM, Intellectual Property Rights-Innovation, Governance, Institutional Technologies (Edgar Elgar publishing ltd,2006) 5) BIRGITTE ANDERSEN, IF „INTELLECTUAL PROPERTY RIGHTS‟ IS THE ANSWER,
WHAT
IS
THE
QUESTION,
REVISITING
THE
PATENT
CONTROVERSIES, Intellectual Property Rights-Innovation, Governance, Institutional Technologies (Edgar Elgar publishing ltd,2006) 6) SHAHID
ALIKHAN
AND
RAGHUNATH
MASHELKAR,
INTELLECTUAL
PROPERTY AND COMPETITIVE STRATEGIES IN THE 21 ST CENTURY(Wolters Kluwer, 2nd edn, 2009) 7) MICHELE BOLDRIN AND DAVID.K LEVINE, AGAINST INTELLECTUAL MONOPOLY(Cambridge University Press, 1 st edn, 2008)
