Month: September 2022

Cookies policy

Why it is essential to modify your choices while entering a Website

Introduction

HTTP cookies, even though of great importance to the modern Internet, are also a vulnerability to your privacy. While as a necessary part of web browsing HTTP cookies help web developers provide a more personal and interactive website visit, they also let websites remember you, your shopping carts, website logins, and more. But they can also be a treasure trove of private information about you that the criminals may use to spy on you.

But what are Cookies? And how do they pose a risk to your privacy?

What are Cookies?

In their simplest form, Cookies are little clusters or packets of data. A web server passes these data packets through to the computer after you’ve landed on a website. The computer then stores the data as files inside the cache of the browser.

There are several types of internet cookies out there, broadly six major types:

  • Session cookies
  • Persistent cookies
  • Third-party cookies
  • First-party cookies
  • Marketing cookies
  • Performance and analytical cookies.

How are they dangerous?

Since the data in cookies doesn’t change, cookies in themselves aren’t harmful. Neither can they infect computers with viruses or other malware. However, there are cyber-attacks that can hijack cookies and enable access to one’s browsing history.

This is the real danger- the ability to track an individual’s browsing history. In this, it is usually the 3rd party cookies that are responsible. Third-party cookies allow advertisers or analytics companies to track [1]an individual’s browsing history across the web on all sites that contain their advertisements.

Consequently, the advertiser can determine that a user first searched for, say, running apparel at a specific outdoor store before checking a particular sporting goods site and then a certain online sportswear boutique.

Zombie cookies are third-party cookies and are permanently installed on the users’ computers, even if they opt not to install cookies. They also reappear after deleting them. When zombie cookies first appeared, they were found to be created from data stored in the Adobe Flash storage bin. They are sometimes also called “flash cookies” and are extremely difficult to eliminate.

Legal Stand

Thanks to international privacy laws, among which is the EU’s General Data Protection Regulations (GDPR) and the Eprivacy Directive, websites must do a couple of things before they can install cookies in a browser or device:

  • Declare the cookies they use
  • Get the user’s consent to use these cookies

Why they need to get the user’s consent comes down to the type of information that cookies can gather. Cookies can collect what’s known as “personal data” or “personal information.” Personal data is any information that can be used to identify you or your household. Examples include Name; IP address; Email address; financial details; Login details etc.

Global privacy laws allow consumers to restrict who has access to personal information, revoke the consent to a company holding the personal data at any time, and refuse to accept marketing and other unnecessary cookies that collect personally identifiable data.

Most importantly, if a webpage wants to use cookies, it must inform the consumers:

  • Why the cookies are being used
  • Specifically what type of information they are collecting
  • How do they use the data and [2] who are they sharing  it with
  • How to revoke consent
  • How to delete cookies

Companies should mention these rights in a Cookie Policy. You’ll either find this inside the Privacy Policy or in a separately linked document. Usually, the Policy is found linked at the bottom of the website in the footer.

Conclusion

There is always the option to make or not to make cookies a part of one’s internet experience. You can limit what cookies end up on your computer or mobile device.

Allowing them will streamline your surfing. Removing cookies later can help you mitigate your risks of privacy breaches. It can also reset your browser tracking and personalization. Before removing it, however, it is better to evaluate the ease of use expected from a website that uses cookies. In most cases, cookies only improve the web browsing experience. To conclude, we may say that it is better to be on the lookout when it comes to Cookies.

BY

SAURADIP MUKHERJEE

1st Year LLB,

ILS LAW COLLEGE PUNE

[1] https://www.kaspersky.com/resource-center/definitions/cookies

https://www.privacypolicies.com/blog/cookies/

[2] https://www.privacypolicies.com/blog/cookies/

https://www.kaspersky.com/resource-center/definitions/cookies

Memes and Copyright Infringement In India

Introduction

With the increase in the number of Internet users, the use of social media has become very common in the modern-day scenario. Social media was created to remove the physical barriers between people and make human interaction easier and barrier-less, but with time social media has become a great platform for sharing content, images, thoughts, beliefs, humorous content, etc. One such humorous content is memes.

Memes are an image, video, piece of text, etc., typically humorous, that is copied and spread rapidly by internet users, often with slight variations & the person who creates a meme is called a “memer”.

Types of Memes and their impact on Copyright Protection

Generally, there are two types of memes: 

1) Where the person creating the meme uses images or videos or texts which are already copyrighted by some other creator to create his meme. 

For Example, The famous character of “Dwight K Schrute” from the famous web series called “the office” is used by many memers to depict savage and humorous replies.

In the above case the copyright of the image of “Dwight K Shrute” lies with the producer of the web series “the office”. Therefore, if the producer of the web series can prove that this meme is infringing his copyright then the producer can stop the meme from being shared further. The key point, in this case, is to determine whether there is any substantial imitation or copying of the original work and if yes then such memes would constitute infringement.

2) Where the person creating the meme uses images or videos or texts which originally belongs to him to create his memes. Such memes can be termed artistic works as there is a sufficient amount of talent, labor, and judgment involved in the creation of such memes. Hence the creator of such memes can claim copyright on them. But on the contrary sharing, such kinds of memes without the permission of the creator will lead to copyright infringement and the creator of the meme can stop his meme from being shared.

“Doctrine of Fair Use” under The Copyright Act 1957 (Section 52)

“The doctrine of fair use” acts as a good defense when it comes to copyright infringement. Section 52 The Copyright Act of 1957 has enlisted certain grounds to determine whether work is a “fair use” or not. To claim the defense of fair use any one of the following grounds must be satisfied.

  • Firstly, it is important to determine whether the purpose of the copied work was to gain a commercial benefit or not. Memes are generally created for entertainment purposes and there is no element of commercial benefit. However, if a meme is created for commercial benefit without the permission of the author then the creator of the meme cannot take the defense of “the doctrine of fair use”. Generally, memes are created for entertainment purposes and hence they satisfy this ground under “the doctrine of fair use”.
  • Secondly, it is important to determine the Nature of Copyrighted work, generally, memes are made of already published materials and in such cases, the author of such work has exhausted his public appearance hence the memer can claim the defense of fair use.
  • Thirdly, the amount or proportion of copyrighted work used, if a very slight proportion of copyrighted work is used and the substantial portion is not copied then the creator of a meme can take the defense of fair use.
  • Fourthly, the effect on the consumers, generally memes are targeted only for entertainment purposes and not commercial gains. Hence memes are protected under this doctrine as they are mostly for entertainment purposes.

The only exception to the defense of fair use is when content is made to harm society or violate an individual’s right to privacy enshrined under article 21 of the Constitution. In these cases, the memer cannot take the defense of fair use and he is liable for legal action.

Conclusion

Memes and copyright infringement have become a very common issue in India, but to date, the courts have not witnessed any meme-related litigation. There have been cases where defamatory remarks have been circulated through memes but as of now, no litigation in India has taken place for copyright infringement with regards to memes. Hence in India, we need better Copyright Protection and new cyber laws to cover such aspects, we need to increase awareness about the Copyright Laws in India and we also need to educate individuals about copyright infringement.

In the year 2021 the parliament took a forward step and passed the “The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which talks about identifying the creator/originator of the content in case an inappropriate content and other ethic codes relating to social media. This step is very useful to curb the infringement of copyright through social media platforms as the originator/creator of the infringing content can now be identified.

BY-

YOGESH SOMANI

1ST LLB, ILS LAW COLLEGE

The Google AdWords program and its Impact on the Registered Trademarks in India

Introduction:

With the Indian economy going towards digitalization and with the advancement of technology more and more companies in India are going digital and here internet plays a significantly important role because companies are establishing their online presence and are shifting from the old school advertising methods to the modern-day internet and social media-based advertising methods. One such modern-day advertising method is the google Adword program which allows advertisers to display their ads on googles’ search engine result page simply by choosing a keyword that relates to their business and bidding for the same. It is a pay-per-click advertising service where the advertiser pays only when a visitor clicks on his ad.

Illustration: If a company is involved in making mobile phones, then the company can select the keywords ” mobile phones” and bid for the same on the Google AdWord platform. Once the keyword is listed with google, then whenever a visitor searches the words ” mobile phones ” the ad of the advertiser comes on top.

The Issue:

The use of the Google Adword service imposes an imminent threat on the registered trademarks of businesses as a registered trademark can be used as a keyword by any third party to link its website and advertise its goods and services. The above issue not only confuses the minds of the customers but also negates the main purpose of the trademark which is to reduce confusion and doubts about a particular brand among prospective customers. Further, it also causes a risk of trademark infringement under sections 29 (7), (8), and (9) of the Trademark Act 1999.

With the increase in competition in trade and business, the above issue has become very common in the modern-day scenario. Often Companies use the Trademark of their competitors as Keywords in google Ads to boost their revenue and encash the competitor’s goodwill. Unfortunately, such practices are not regulated and there are no specific cyber laws to prevent the doing of such practices.

Judgments & Court Orders:

  • In the recent case of M/S Drs Logistics (P) Ltd & Another vs Google India Pvt Ltd & Anr on 30 October 2021, the plaintiff prayed to restrain google and other third parties from using its registered trademark as a keyword in the google Adword program. The Hon’ble Delhi High Court, in this case, held that “the keyword even if assumed to be invisible, directed internet traffic to the website of the competitor thereby confusing the minds of the prospective customers about the origin of the webpage. “The court further implied that the practice of using a registered trademark by any third party as a keyword in google Ads would amount to infringement and passing off.
  • In the recent case of MakeMyTrip India Private Limited vs Booking.Com B. V & Ors. on 27 April 2022, the Hon’ble Delhi High Court stated that the hidden use of the trademark in metatags and a source code also amounts to infringement. Defendant Booking.com was held liable for passing off Plaintiff’s mark and it was also held that even the invisible use of a mark as a keyword could constitute passing off. Further, the Hon’ble Delhi High Court restrained the defendant Booking.com from using the mark “Makemytrip” as a keyword on Google Adwords.

Justice Prathiba M. Singh observed that “Google Ads creates a situation where a trademark proprietor is being forced to bid for its trademark for the advertisement of its goods and services.”

“It is unethical of Google to encash upon the goodwill and reputation of brands by allowing their competitors to use their registered trademarks as keywords in Google Ads,” said Sijo Kuruvilla George, the Executive Director of the ADIF.

Conclusion & Recommendations:

The google Adword program may be an effective and economical advertising option but the risk of trademark infringement through this program still subsists and is a very major problem in the modern-day scenario. Currently in the Indian Scenario improvement in the protection of Intellectual Property Rights and the introduction of cyber laws is the need of the hour. Further, an AI-based system shall be implemented by google where the use of a registered trademark by a third party is automatically detected and prevented.

BY

Yogesh Somani

1st LLB Student

ILS Law College, Pune

PATENTABILITY OF COMPUTER SOFTWARE

In May 2017, the Kolkata Patent Office granted a patent to Apple on a ‘method for browsing data items with respect to a display screen associated with a computing device and an electronic device.’ When section 3(k) expressly prohibits patenting ‘a mathematical or business method or a computer program per se or algorithms’, how did Apple ace up the game? Let’s finally reverse engineer the dilemma of ‘per se.’

Software programs have become a necessary component of the world due to their greater effectiveness, secure interactions, and improved functionalities. Software innovation is becoming a more critical growth driver for businesses. India is significant in the world’s information technology (IT) market. As they may be accessed by users without payment and are subject to piracy and copying, software and computer programs are subject to fierce market competition. They are fairly sensitive to suffering unjustified economic loss. Furthermore, there is a severe risk of being outmoded relatively soon due to the intense competition, as the rivals might introduce a competitive product swiftly.

Why patent and not copyright?

When it comes to intellectual property protection for software, copyright and patents quickly spring to mind. Software programs are typically protected using copyright laws since developing source code and programs are equivalent to creating any literary or artistic work. The most effective approach to protect intellectual property is through a patent, but obtaining one for software requires meeting several strict requirements. Additionally, copyright violations and software piracy are not new in the digital age; with such sophisticated technology, it is possible to duplicate the complete program code. Additionally, the process, procedure, or discovery are not protected by copyright laws.

Computer programs are considered literary works under Section 2(o) of the Copyright Act of 1957. Still, the Act does not distinguish between source and object codes; both fall under the definition of a computer program’s literary work. However, the work must be original in order for software or computer programs to receive copyright protection; with that being said, fair use and reverse engineering of the program are permitted by the Act and won’t be considered violations.

Interpreting section 3(k) of the Act[1]

 ‘a mathematical or business method or a computer program per se or algorithms’ cannot be patented as expressly mentioned as not an invention under section 3 k. The term “per se” is not defined in the Indian statute, but according to the Computer Related Invention (CRI) guidelines published in 2017 by the Office of the Controller General of Patents, Designs, and Trademarks, the term “per se” should be interpreted according to its standard dictionary definition. “Per se” means “by itself,” which means that you are referring to anything on its own, rather than in relation to other things, according to the Oxford Advanced Learners Dictionary.

A computer program is also defined as “a set of instructions expressed in words, codes, algorithms, or in any other form, including a machine-readable medium, that can cause a computer to carry out a certain task or produce a specific result” under Section 2(ffc) of the Copyright Act, 1957.

Therefore, the term “computer program per se” can be understood as words, codes, algorithms, or in any other form, including a machine-readable medium, that can cause a computer to carry out a particular task or produce a specific result on its own is not a patentable subject.

Revised guidelines-2017- Determination of excluded subject matter relating to CRIs

 It was made clear that

“What is important is to judge the substance of claims taking the whole of the claim together. If any claim in any form such as method/process, apparatus/system/device, computer program product/ computer readable medium falls under the said excluded categories, such a claim would not be patentable. However, if in substance, the claim, taken as a whole, does not fall in any of the excluded categories, the patent should not be denied.”[2]

In order to be patentable, new software must actually come with a physical component. Wherever a combination of hardware and software meets the criteria for patentability and produces additional technological effects

As many as four business method patents were patented in 2017.

Business method patents- Facebook

Facebook claimed in its application that its invention is not only a computer program but “includes hardware limitation and provides technical improvements and benefits like checking privacy setting associated with the user profile .”The Chennai Patent Office accepted its application, and the patent was granted. 

Apple’s media management program

Apple claimed that its invention delivers an “improved technical effect” and should be subject to patent. Surprisingly, Apple’s application was approved by the patent office and granted the patent.

Google’s information retrieval system

 Google argued that its invention is not a computer program per se “but provides a technical solution to a technical problem of how to automatically identify phrases in a document collection” and obtained the patent. 

Additionally, it is reiterated in a recent decision from the Delhi High Court that not all computer programs are subject to the bar under Section 3(k) of the Patents Act. If computer programs show a “technical effect” or a “technological advancement,” they might be patented.

According to the Delhi High Court’s ruling in the case of FeridAllani v. Union of India & Ors. [2019][3], the majority of contemporary technologies, including cars, washing machines, and refrigerators, rely on computer programs. Computer programs are somehow included in all of these. As a result, present inventions will no longer be able to be protected if a computer program is denied just because Section 3(k) forbids patentability. The Court clarified that not all inventions based on computer programs are subject to the patentability threshold; only “computer programs per se” are. A similar decision was made in Enercon India Ltd. v. AloysWobben [4].

Conclusion

The technological solution that software or computer programs offer is evaluated in addition to the other patentability criteria described above. At the moment, four branches of the Indian Patent Offices may have slightly different practices in place, and the language of the law may appear confusing. Engineers, designers, developers, and inventors have a responsibility in such a situation to seek patent protection for software programs and, whenever possible, obtain legal precedents to increase the certainty around software patents.

BY-

SANDHYA BALAJI

4TH YEAR BALLB

CHRIST UNIVERSITY, LAVASA

[1] The Patents Act,1970 § 3(k), No. 39, Acts of Parliament, 1970 (India).

[2] IPINDIA, https://ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_86_1_Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf, (last visited August 4 ,2022).

[3] Ferid Allani v. Union of India, 2019 SCC 11 Del 867

[4] Enercon India Ltd. v. AloysWobben, No.109 of 2013.

Can Hashtags be Trademarked?

#TWITTER #2006

The use of social media to generate interest in and responses to any conceivable event, goods, or service has become enormously popular. They are based on a culture of openness, sharing, and “real-time” marketing. Twitter was the first social media network to bring the idea of hashtags to the social media globe in 2006. As there is more user-generated material using hashtags, it becomes viral and creates a new trend. The hashtags #follow4follow #photography #dalgonacoffee, which were popular in 2020, and #dontrushchallege #makeupinsta #selfie, among others, became more popular in 2021. Some hashtags, such as #OOTD and #throwbackthursday, remain timeless and are used by social media users to caption their images when posting them online.

Therefore, using hashtags in your marketing and intellectual property tactics is quite pertinent in business. The issue here is: What is the legal procedure for doing so?

#TRADEMARK

A hashtag is not long enough to be protected by copyright. It is not an invention or idea that would qualify for patent protection. Therefore, registering a hashtag as a trademark is the only way to protect it. The Trade Marks Act 1999 is an elaborate and complex piece of legislation

The examination of the Trade Marks Act of 1999 in light of hashtags. In it, Section2 (1)(m) defines the term “Mark.” It is stated that a mark can be a symbol, a logo, a heading, a label, a ticket, a name, a signature, a word, a letter, a number, the shape of a product, its packaging, a group of colors, or any combination of those things.

In accordance with Section 2(1)(ZB) of the Act, a “trademark” is defined as a mark that can be graphically represented and can be used to distinguish one person’s goods or services from those of others. This definition can include the shape of the goods, their packaging, and the combination of colors.

Trademark law, therefore, examines two essential requirements:

  • it must be able to be graphically represented, and
  • it must be able to differentiate the goods and services of one person from those of another.

Since hashtags are a graphically expressed mix of words and numbers, the first need is entirely satisfied for them to be registered as a trademark. The second circumstance, however, is where the actual issue lies. To qualify under trademark law, a hashtag must be able to serve as a source identifier for the brand or organization.

#FRATCOLLECTION

In fraternity collection LLC vs. Elise Fargnoli[2], The defendant, Elise Fargnoli, was found guilty by a US court of trademark infringement and false advertising. She was a fashion designer and a former employee of Fraternity Collection. She has advertised a product of rival fashion designs on her Instagram profiles using the hashtags “#fratcollection” and “#fraternitycollection.” When people clicked the hashtag, they were taken to the same fraternity collections designs, and attention was diverted to rival companies’ goods. 

#INFRINGEMENT

What are the current circumstances about using a hashtag trademarked by a brand? Does using a brand’s trademarked hashtag in a social media post subject you to legal consequences for trademark infringement?

Even if you file a trademark application for your hashtag, it won’t give you exclusive rights to use it in social media posts or stop other users from doing so. There may be grounds for infringement if the usage implies a relationship or link with the trademark owner or if it raises a possibility of confusion or an association with the trademark owner.

#PAYHEED.

To sum up, social media aficionados are encouraged to #beware #payheed #proceedwithcaution even if hashtags are a great tool to advertise a business and generate interest in a marketing effort. In the same manner that a brand name should be protected under trademark law, hashtags should also be protected under IP laws.

BY- SANDHYA BALAJI

CHRIST UNIVERSITY, LAVASA

[1] Courtesy: Posted by PACERMONITOR in ‘Hashtags Become a Trademarking Battleground’ by Johanna Mayer on November 28,2016

[2] Fraternity Collection, LLC v. Fargnoli, 2015 WL 1486375, No. 3:13–CV–664.