Q1. Brand protection
Conventus Law (CL): The next phase of the Internet, known as the metaverse, is on its way, thanks to ever more faster developing technology. This new environment presents both problems and opportunities for brand owners. How are companies prepared in India for this and what IP protection system is there currently to protect brand owners?
Ranjan Narula (RN): The IP protection system that is currently adopted to protect brands in the physical or real world will also apply to metaverse. As a first step, companies should seek to register the existing and newly coined brand names that they intend to use in the metaverse with the respective TM offices. The registrations should cover goods and services for use in online environments and extended reality virtual environments. As an example, if the companies intend to set up a retail store, they must protect their brand for “Retail store services featuring virtual goods”. If they are a gaming company or in the entertainment business, they should consider seeking protection for entertainment services, namely, “Providing online, non-downloadable virtual goods; Virtual reality software for interactive entertainment and virtual reality gaming.” The companies may also consider covering software to create, produce, and modify digital designs and characters, avatars, digital overlays, and skins to protect their brands.
The brands should also consider setting out a strategy for the metaverse. Some of the questions to consider are whether they want to use the metaverse as a means to reach consumers and build brand awareness, or they want to have a retail presence to offer their goods and services. Also, invest in understanding the metaverse platform’s ‘take down’ policy and programme as it is in the first instance easier and cost-effective to work with the platforms to remove infringements. The most challenging part for trademark owners in the metaverse is that the definition of confusion could be obscure since the metaverse itself blurs the boundaries between virtual spaces.
Q2. Patents
CL: Do you think there is a need for more awareness about the value of IPR and the competitive advantage of IP when seeking funds for startups for example? Is Software Patentable in India? Do you think patent laws in India need to be stronger?
RN: Yes, considering the number of Patent filings, there is a need to make the start-ups aware about the benefits and the competitive advantage that IPRs can bring to a business. Patents are essential for start-ups seeking to commercialize their technology and seeking funds for the growth of their venture. Though most start-ups are aware of the basics of IPRs, however, it seems they do not seek to integrate IP and business strategy. As a result, they do not make enough investment in IP to leverage their IP assets to enhance the value of their business. Angel investors and VCs look for companies that can retain their competitive advantage through innovative and creative solutions. In that context, patents and trade secrets play an essential role. The awareness of IPR linked with the success of business and examples of how certain start-ups have successfully implemented this strategy will go a long way in delivering the right message.
Computer Program/ Software per se is not patentable in India as per section 3(k) of the Indian Patent act. However, the computer-related inventions which provide a technical solution to a problem resulting in overall technological advancement are patentable. Such inventions are judged in terms of the substance of the claim as a whole and the inventions which solve a technical problem in a technically advanced manner with the support of hardware (even if it is a generic hardware). The invention will be considered for patent protection.
The Patent Act, in my view, may not require amendment at this stage. However, the implementation of the act by the authorities needs to be stronger in order to boost innovation and ensure promotion of new age entrepreneurs e.g., a balanced approach regarding interpretation of restrictions posed by section 3(k) in case of software inventions or section 3(d) in case of pharmaceutical patents. Overall, the environment should be developed for stronger protection and enforcement of innovations. Attempt should also be made to ease commercialization/transfer of the technology to the industries and regulation on tax and other compliances in this regard should be made business friendly. Apart from that more focused approach and incentives should be given to R & D and activities around innovation.
Q3. Trade Secrets
CL: What laws currently offer Trade Secrets protection? As there is no specific law or enactment on trade secrets in India, do you expect any new regulations covering trade secrets to be put in place in the near future?
RN: With recent advances in technology and the ease of sharing, copying, and storing information in the digital world, one of the biggest challenges businesses face is protecting their confidential business information. This information can include business strategies, proposals, client databases and information, compilations, designs, programs, drawings, devices, formulae, or compositions. Not all types of information qualify for protection under the patent and copyright laws; specific data arise from a company’s day-to-day operations. Many businesses find it challenging to safeguard their crucial information due to the various online and physical tools available to ease the copying of data and its transfer. The threat they face is external and comes from internal sources such as employees and contractors who have access to critical business information. Although India has no specific trade secrets law, Indian courts have upheld trade secrets protection under various statutes, including contract law, copyright law, the principles of equity, and – at times – the common law action of breach of confidence (which in effect amounts to a breach of contractual obligation). Section 72 of the Information Technology Act 2000 also provides specific protection, although this is limited to electronic records.
The remedies available to the owners of trade secrets are:
- an injunction preventing a licensee, employee, vendor, or another party from disclosing a trade secret;
- the return of all confidential and proprietary information; and
- compensation for any losses suffered due to the disclosure of trade secrets.
The IP think tank that worked on India’s IP policy which was adopted by the Government on 12th May 2016, recommended a sui generis law to protect trade secrets. Thus, we hope regulations covering trade secrets will be put in place in the near future.
Q4. Geographical Indication
CL: The Geographical Indications of Goods Act came into effect in 2003. What practical steps do I have to take to obtain geographical indication protection? Do you think more should be done with regards to GIs in India?
RN:The protection of geographical indications in India is governed under the Geographical Indications (Registration and Protection) Act, 1999.
The Geographical Indications (GI) protection law in India focuses on granting statutory protection to handicrafts, food, and fabrics that are unique due to their special characteristics, qualities, methods, and human skills required to make the products unique. One of the GI law objectives is to enhance the value of the goods for the export market. However, the quality control of GI products is not linked to obtaining and maintaining GI protection. In other words, not enough attention is being paid to maintaining the quality and consistency of the product by all producers in that region that are entitled to use the GI tag. As a result, the GI tag creates the buyers’ initial interest being a branding tool. Still, ultimately, the export markets are willing to pay a premium on quality and practices followed by a producer, e.g., an agricultural product. Therefore, it is vital that the producers or organizations that obtain GI tags for their products place equal emphasis on creating quality parameters and strictly audit the process and final outcome so that products bearing GI tags have consistent quality.
Q5. AI, Blockchain, NFT
CL: In India currently, can a machine or an Artificial Intelligence (AI) get Copyright protection for the work created by it?
RN: As with several jurisdictions worldwide, the law on AI being recognised as an author under copyright law is unclear. The challenge comes from the registration process under the Copyright Act that a natural person can make. It is unclear who can claim authorship of an AI-created work that did not involve any human input. However, recently copyright office has recognized an artificial intelligence tool – RAGHAV Artificial Intelligence Painting App – as the co-author of a copyright-protected artistic work. Undoubtedly, protecting AI-based work and granting authorship rights to an AI tool will go a long way in recognising and protecting the interests of those who develop such AI applications.
The crucial question appears to be whether the “work” is one of human authorship, with the computer merely being an assisting instrument, or whether the elements of authorship in work (literary, artistic, or musical) were actually conceived and executed by a machine, and not by a man.
Granting authorship rights to AI or a machine has ethical and moral issues, some of which are outlined.
Social impact: The potential impact of AI on the labour market and economy and how different demographic groups might be affected is evolving. The risk of power and wealth in the hands of the few large tech companies that develop AI technology is being raised. Many fear that privacy, human rights, and dignity would be at risk with machines replacing humans.
Psychological impact: How would we deal with human-robot relationships? Do robots deserve to be given the status of ‘personhood’, and what are the legal and moral implications of doing so?
Impact on Financial system: Potential impacts of AI on financial systems include risks of manipulation and collusion and the need to build accountability. Again, who will be accountable – the creator of AI or the AI itself?
Impact on Legal system: There are several questions on contribution of AI where it is used for criminal activities and its role in supporting and propagating the activities such as drug trafficking. Also, where AI driven autonomous vehicle is involved in a collision, the cases of this nature should be treated as case of negligence or product liability.
Environmental impact: Increasing use of AIs come with increased use of natural resources, increased energy demands, and waste disposal issues. However, the proponents of AIs argue they could improve how we manage waste and resources, leading to environmental benefits.
Trust: For AI to take on the task of performing medical procedures, the public must trust the technology. How do public trust that technology is fair, impartial, and transparent? What made AI arrive at a particular decision? Who would set up the parameters?
