Data and Intellectual Property Rights

data-privacy

Jan 28 is celebrated as Data Privacy Day. We all have heard statements like Data is the new gold or data is the new oil or maybe I could state that data is becoming the new currency. With growing data, there comes a responsibility of handling such big data. Not just responsibility but a sense of duty to handle such data carefully.

Every right comes with a duty. But wait, where is the right? Do you have any right on your data? Can someone use your data without your permission? Is there any exception with respect to such rights? Are you involved in Data market? Does data have any relation with Intellectual Property rights? Is data copyrightable? Are databases protected under intellectual property?

We all have these question in our mind. Some are discussed, few are not. Some have been answered, rest are struggling to find the answers out.

Undoubtedly data has become one important sector and a potential market and threat to the economy and the society.

I believe that law and technology must go hand in hand. Law has to be progressive enough to deal with the modern problems. As modern problems require modern solutions. In the era of digitalization, data is a huge market. With the increasing technologies, inundation of data has happened and this has generated an opportunity for data scientists and data analytics. However, it has also raised the eyebrows in terms of privacy issues.

Covid has taught us how to work in the new normal. We all have witnessed working from home, taking online classes and this has also contributed towards building a stronger internet infrastructure.

Gone are the days when companies spend money on the architectural infrastructure. In the near future or may be in the today’s present, there is a huge need to have stronger and protected internet infrastructure.

With the ecommerce, online shopping portals like flipkart, amazon etc. where the data of users are used must be protected.

The online social networking sites like giant facebook or what’s app have not escaped from our eyes when we talk about data and privacy.

We all have witnessed the what’s app privacy issues and the justification it presented by inserting status in everyone’s phone.

At the outset, intellectual property data management has emerged a promising field which can be explored.

Right to privacy is also enshrined in the Indian constitution which makes it amply clear how much importance privacy carries in our country. Though there are some laws which are relevant here. For instance, Information Technology Act, Copyright Act, Indian Penal Code, etc.

The focus of this article will be majorly on the Intellectual property side of the said issue. It is pertinent to note that Copyright law clearly recognizes its significance in data related issues. Indian Courts have very well recognized copyright laws in databases. Compiling data in a creative manner or gathering data and making it by investing time, labor and skill will make it a piece of literary work and thus can be protected under Copyright law.

To deal with infringement of copyright, there are certain provisions under Copyright law which can be a real aid.

Like most of the intellectual Property, data can also be licensed. In today’s world, large corporations are involved in data licensing and needless to say that data has become a huge asset. It is no less than a promising asset to large corporations and giant companies.

This brings us to another legal area i.e. contract law where a variety of agreements can be made and exercised subject to other conditions.

Data has become such a huge business asset that it is protected by several other laws apart from IP.

Businesses have a lot of interest in collecting and using data in order to increase their income by either increasing target audience or by marketing. The tech companies analyze this big data and in result improves their internal operations, customer services etc. Customers feel insecure when their data is leaked. Confidentiality of data must be kept properly and diligently. It is also important to differentiate between sensitive and non-sensitive data.

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There are different types of licenses available in copyright. For instance, you can explore creative common license while finding pictures from Google. There is an open database license which is widely used for data licensing. It allows users to modify, share and use the data and keeping it open with same degree of freedom to others.

As per Section 63 B of the Copyright Act, 1957 any person knowing the use of infringing copy of computer programme will be considered an offence of infringement.

Section 63B in the Copyright Act, 1957

1[63B. Knowing use of infringing copy of computer programme to be an offence.—Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:4[63B. Knowing use of infringing copy of computer programme to be an offence.—Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees\:” Provided that where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.]

However, in spite of the several laws which has been laid down, we still lack a proper dedicated law towards personal data protection. Not only in data protection, but the other aspects related to data such as data collection, storing, using, transferring etc. require a variety of hardware and software applications. Therefore, for such inventions and innovations, patent law will come into picture. Hence the importance of IP in the subject of data cannot be neglected. Rather it should be appreciated that IP is the techno legal framework which provides modern approach to solve technology driven problems.

Hence Law should be technologized.

Author: Pallavi Bhatia, Second Year Student, RGSOIPL, IIT Kharagpur

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