Intellectual Property and the Internet

The world of “Internet” and the electronic impulses that are connected with it is mysterious
to most people. The idea to connect every single computer within a network to enable
users to exchange information, ideas and data came into being at early 1960’s, when
American military researchers decided to develop their ability to share academic research. 1
However, it was only in the year 1989 when the Internet became a world-wide network of
interconnected computers.2 It was done by Tim Berners Lee, who formed the non-
proprietary and free World Wide Web (www). 3 This created a new and revolutionised space
for the people in different and faraway places to access information and to communicate
with each other. Thus, it can be said that a person by using a single common language
(Internet Protocol Language) can interact with any other person in any place, have access to
information, and collect or distribute it around the world over the Internet.

The use and importance of the Internet are growing rapidly every year. Nowadays, it is
difficult to picture life and work without the Internet. However, till today, there is no proper
definition of the Internet.4 In providing a legal response to the impact of the Internet on our
society, the United States Supreme Court envisaged the Internet as–

“a unique medium – known to its users as “cyberspace” – located in no particular

geographical location but available to anyone, anywhere in the world” 5

It can also be depicted as-

“the electronic nervous system of our society, which gives the world its dynamic
structure”.6

1
Barry M. Leiner, ‘A Brief History of the Internet’ (1999) < https://www.internetsociety.org/internet/>
accessed 17 June 2019.
2
Ibid.
3
Ibid.
4
Kevin M. Fitzmaurice, Renu N. Mody, ‘International Shoe Meets the World Wide Web: Whither
Personal Jurisdiction in Florida in the Age of the Internet?’ [1997] 71- FLA. B.J. 22.
5
Reno v ACLU [1997] 117 S. Ct. 2329, 2334-35
6
Castells Manuel, The Internet Galaxy: Reflections on the Internet, Business and Society (Oxford
University Press 2003) 36, 65.
The rapid growth of the internet had given rise to a number of issues. One of the most
important issues is the infringement of Intellectual Property Rights on the Web or over the
internet.

It should be noted that the infringement of intellectual property rights on the internet is not
much different from the traditional offline infringement. The only difference lies in the
speed and accuracy with which the infringement of the intellectual property can be done
through online i.e., over the internet. For instance, with the advent of 4G mobile phone
communication, digital content can be delivered to mobile networks in a matter of seconds
and without a marked difference in quality. 7 There is practically no difference between the
original and the copy.8

The rate of the infringement of IP rights over the Internet is very high. The UK law
enforcement agency reports highlighted the rapid growth of IP rights infringement over the
internet in the last few years. For instance, it was stated that the British Recorder Music
Industry removed over 10,000,000 search results from Google directing Internet users to
illegal copies of music; the Publishes Association has removed 223 listening from UK
websites containing over 5,000,000 e-books from 2017-2018. 9 Ofcom research shows that
67% of all Internet users have no idea whether the content that they are accessing online is
legal or not.10

In the case, John Walmsley v Education Ltd 11, the judge stated that the employee of the
defendant, Ms Roberts,

“found out how easy it is to copy images by the single click of a mouse and these do
get republished all over the Internet, often without attribution”. 12

7
Anders Sandberg, ‘Intuitive pirates: why do we accept file sharing so much?’ (2009)
<http://blog.practicalethics.ox.ac.uk/2009/04/intuitive-pirates-why-do-we-accept-file-sharing-so-much>
accessed 25 June 2019.
8
Ibid.
9
Intellectual Property Office, ‘Annual IP crime report: 2017 to 2018’ (12 April 2019)
<https://www.gov.uk/government/publications/annual-ip-crime-report-2017-to-2018> accessed 30 June 2019.
10
Nataliya Hitsevich, ‘Intellectual Property Rights Infringement on the Internet : An analysis of the Private
International Law Implications’ [2015], <http://openaccess.city.ac.uk/17914/1/Hitsevich%2C%20Nataliya.pdf>
accessed 11 July 2019.
11
Walmsley v Education Ltd t/a Oise Cambridge [2014] WL 2194626
12
Nataliya Hitsevich, ‘Intellectual Property Rights Infringement on the Internet : An analysis of the Private
International Law Implications’ [2015], <http://openaccess.city.ac.uk/17914/1/Hitsevich%2C%20Nataliya.pdf>
Hence, it can be said that the exceptional qualities such as the speed, cost and ease of
access makes the Internet a proper tool for infringement of IP rights.

It is observed that detecting infringement of intellectual property is very difficult specially,

when the infringement is done through the internet or the Web. This is because it is quite
complicated to know the particular point between the original uploading of information and
its eventual display on a screen another country. 13 Moreover, the infringing material may be
there on the Internet only for a very short period of time, as the “hosts” and Web page
creators can delete files within days or hours from the posting of the material. 14 Due to this,
the IP rights holders most of the time does not realizes that their rights have been infringed
in the cyberspace.

It is also necessary to identify the alleged infringer and the location from where the
particular infringement is being done. 15 This is one most difficult task as the internet, by its
nature, makes it possible for the user to be anonymous. There are also various tool like
anonymous retailer programmes, strong encryption software etc. that makes it difficult to
detect the original source or user behind a particular post.

However, identification information such as an IP address may be obtained from the

respective Internet Service Provider (ISP). 16 In the case of Promusicae v. Telefonica17, it was
made clear that civil courts may order ISPs to disclose traffic data relating to copyright
infringers in civil cases.18 This appears consistent with the provisions of Article 8 (1) of
Directive 2004/48/EC on the enforcement of intellectual property rights, which provides for
a right of information compelling the infringer as well as others to provide extensive

accessed 11 July 2019.

13
WIPO, ‘Primer on electronic commerce and intellectual property issues’ (2000)
<http://ecommerce.wipo.int/primer/index.html> accessed 22 June 2019.
14
Ibid.
15
Ibid.
16
Nataliya Hitsevich, ‘Intellectual Property Rights Infringement on the Internet : An analysis of the Private
International Law Implications’ [2015], <http://openaccess.city.ac.uk/17914/1/Hitsevich%2C%20Nataliya.pdf>
accessed 11 July 2019.
17
Case C-275/06 Productores de M´usica de Espa˜na (Promusicae) v Telef´onica de Espa˜na SAU
[2008] ECR I-271
18
Dr. Lulin Gao, ‘Intellectual Property Rights in the Internet era: The New Frontier’ [2006] 5 J. Marshall
Rev.Intell. Prop. L. 589 < https://repository.jmls.edu/cgi/viewcontent.cgi?article=1105&context=ripl> accessed
11 July 2019.
information on the origin and distribution networks of the goods or services that infringe an
intellectual property right.19

But, in the particular case of Liskula Cohen v Google, Inc.20, the court ordered Google was to
reveal the name of an anonymous blogger who had bad-mouthed the fashion model Liskula
Cohen, but Google had refused to provide the person’s identity on the basis that it would
constitute an infringement of its privacy policy. 21 Also, simply knowing the IP address is in
many cases not enough to detect the identity of the person.

Thus, in order to provide protection for intellectual property rights over the internet, there
is a need to regulate the internet. The EU Directive on the enforcement of intellectual
property rights does not address this constantly growing and serious problem of IP
infringement on the Internet.22 The TRIPS Agreement also does not provide with any
provision that indicates any internet related IP protection. Later, in 1996, the WIPO, the
Copyright Treaty (WCT) and WIPO Performances and Recording Treaty (WPPT) was adopted
by the WIPO Diplomatic Conferences to omit the problems within the TRIPS Agreement. 23
This acts and treaties provided provisions on the internet related IP protection. They
focused on the issues of IP protection on the Internet.

Along with the specific provisions of WCT and WPPT and the provision provided by the
Berne Convention (Art.9), relevant laws and regulations were formed to protect IP on the
Internet.24 Another important act called the Digital Millennium Copyright Act (DMCA) was

19
Nataliya Hitsevich, ‘Intellectual Property Rights Infringement on the Internet : An analysis of the Private
International Law Implications’ [2015], <http://openaccess.city.ac.uk/17914/1/Hitsevich%2C%20Nataliya.pdf>
accessed 11 July 2019.
20
Cohen v. Google, Inc. [2009] 887 N.Y.S.2d 424 (Sup. Ct. N.Y. County ).
21
Nataliya Hitsevich, ‘Intellectual Property Rights Infringement on the Internet : An analysis of the Private
International Law Implications’ [2015], <http://openaccess.city.ac.uk/17914/1/Hitsevich%2C%20Nataliya.pdf>
accessed 11 July 2019.
22
Heike Wollgast, ‘IP Infringements on the Internet – Some Legal Considerations’ [2007] WIPO
Magazine. 1/2007 <http://www.wipo.int/wipo_magazine/en/2007/01/article_0005.html> accessed 9 July
2019.
23
Dr. Lulin Gao, ‘Intellectual Property Rights in the Internet era: The New Frontier’ [2006] 5 J. Marshall
Rev.Intell. Prop. L. 589 < https://repository.jmls.edu/cgi/viewcontent.cgi?article=1105&context=ripl> accessed
11 July 2019.
24
Dr. Lulin Gao, ‘Intellectual Property Rights in the Internet era: The New Frontier’ [2006] 5 J. Marshall
Rev.Intell. Prop. L. 589 < https://repository.jmls.edu/cgi/viewcontent.cgi?article=1105&context=ripl> accessed
11 July 2019.
enacted in 1998 in U.S.. 25 This act gave out many new rules and regulations for the
protection of the infringement of IP rights. The DMCA helped to create a balance between
the rights and benefits of the IP rights owners and the public interest. Through this act, it
was possible to protect the rights of the author, while at the same time promoting the
development of the Internet and guaranteeing the right of access to information to the
general public.26

The internet is developing rapidly and it has always acted as a challenge to the current legal
system of IP protection in all aspects. In order to meet the necessary needs of the rapidly
developing Internet, we must work to maintain a balance between IP protection and
technological development. The benefits of both the IP rights owner and public interests
should also be maintained and established. Also, an effort should be made to discuss these
issues relating to the protection of the IP rights at an international level. This would help on
to create a more harmonious and balanced rules and regulation in terms of IP protection in
the area of Internet across the world.

25
Regulations on the Protection of the Right of Communication Through Information
Networks, <http://www.transasialawyers.com/news.php?id=trans-legis.>
26
Dr. Lulin Gao, ‘Intellectual Property Rights in the Internet era: The New Frontier’ [2006] 5 J. Marshall
Rev.Intell. Prop. L. 589 < https://repository.jmls.edu/cgi/viewcontent.cgi?article=1105&context=ripl> accessed
11 July 2019.