Physically readable paper or electronically generated documents have long been replaced by machine-comprehensible, digitally coded records, thanks to Electronic Data Interchange (EDI). EDI created a paperless world in which the sender’s computer generates the message and the receiver’s computer interprets it. E-commerce started with EDI. In its current form, e-commerce can be referred to as Internet powered EDI. In the World Trade Organisation (WTO) Work Programme on Electronic Commerce, it is understood as the processing, distribution, selling, selling or supply of products and services by electronic means. Electronic commerce, broadly defined, refers to all types of commercial transactions that take place over an electronic medium or network, most notably the Internet. Electronic commerce is a novel method of conducting business.
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Issues of Copyright in E-commerce
A very basic formulation of how most countries’ copyright laws refer to electronic correspondence is that it is a copyright violation whenever anyone copies a work stored in electronic format without the permission of the copyright holder. Let us observe some of the major issues related to copyright in E-commerce-
The first issue would be about the publication and when it would be published. This is a significant topic since it will determine the length of the copyright period. If any country has a shorter duration of copyright protection than India, then all work uploaded to the internet can be considered published in that country. India will refuse to recognise Indian copyright if this country does not provide any protection for it.
Secondly, parallel import is prohibited under the Copyright Act unless it is for domestic use. Although the terms import and importer are not specified in the Copyright Act, courts have interpreted import to mean taking anything into India from somewhere else. Thirdly, cybersquatting is a challenge that many businesses face when cyber squatters use their copyright as a domain structure. If the cyber squatter is a non-resident, the corporation will be entitled to seek immunity not under copyright but under the common law remedies relating to transfer of, regardless of whether the domain trademark is licenced or not.
Fourthly, Meta Tags are a problem that must be addressed. E-commerce companies must also struggle with hyperlinking, branding, and meta-tagging in order to achieve marketing targets. Search engines are a very common way to locate things on the Internet. To find content, a search engine uses key terms. If the keyword is used often enough in the meta-tags, the site can appear before the actual site as a result of hits to encoded HTML, raising the likelihood of duping the actual user.
Moreover, making unlicensed copies of original computer programmes by reverse engineering is piracy of the computer software (unless it is legitimately copyrightable) and therefore a violation of the programmer’s patent. Furthermore, the database’s security does not apply to the data or content itself, and it is unaffected by any copyright that may exist in the data or material used in the compilation. As a result, it excludes the large majority of raw data collected from customers by the E-commerce sector. Injunctions have been granted by Indian courts in similar situations in the past (Himalaya Drug Company v. Sumit, 2006 PTC 112 (Del)).
Fair Dealing, on the other hand, is a fallacy in this industry since, because commercial profit is the fundamental intent of an e-commerce enterprise, there is less chance of a fair use protection being eligible. Third-party content may include everything from facts to third-party logos. The copyright is held by a third party in both of these cases, and the e-commerce company must secure the required permissions. Likewise, supplying access to other websites is an issue that must be tackled. The problem would also be who would hold the copyright of the website’s architecture and features.
The position adopted in the TRIPS Agreement’s copyright clauses is to follow the copyright system in its entirety, including the emerging E-commerce sector. Article 2 of the Berne Convention, as well as Articles 4 read with Article 5 of the WIPO Copyright Treaty, 1966 protects “computer programmes” as literary works. As a signatory to the Berne Convention and the TRIPS Agreement, India needs originality in the collection or arrangement of database contents in order to be protected by copyright.
Furthermore, computer databases are included in the scope of literary work under Section 2(o) of the Indian Copyright Act. Furthermore, with the introduction of the IT (Amendment) Act, 2008, there has been a substantial clarification of the spectrum of immunities applicable to third parties, as Section 79 of the new law has been framed in compliance with EU Directives on E-Commerce to decide the degree of intermediaries’ liability for third party data or information. The EU Directive specifies the intermediaries’ responsibility in great detail, including not only copyrights for foresighted developments, but also general material liability.
Suggestions and Conclusion
The new Copyright laws undoubtedly offer rights to Copyright owners, but they are not without flaws. There are some issues for which there are no regulatory solutions under the existing legal framework, such as rights management records, anti-circumvention software protection, and so on. Firstly, an injunction, both temporary and permanent against the infringer is recommended, stating that the offending conduct must cease.
Secondly, restitution for lost revenues or damages to compensate the infringed party for wrongful enrichment should be needed, and finally, orders for records of revenues and orders for seizure and disposal of infringing content should be made available to the E-commerce industry throughout its entirety. The most urgent need, however, is to raise awareness of these issues and to strictly enact regulations governing copyright enforcement, website design, web applications, and content distributed over those channels.
Name of Author:
Abhishek Rudra, 5th year student at School of Law, Christ (Deemed to be University), Bangalore.