INTRODUCTION-

Electronic media has become the oxygen for today’s existence. Even during these difficult times, the electronic media houses would always find something to report. But can the media houses report something, if it doesn’t belong to them? This is where the concept of intellectual property steps in. In the age of forwards, and constant online engagement, a little room is left for privacy of individuals, and honouring the ownership of other’s soft property. The question which then pops up, is, firstly what is the relation between intellectual property and electronic media, and to what extend can the intellectual property of others be exploited by the media companies? Hence, it becomes necessary to understand the position of enforceability of intellectual property vis-à-vis various e-medias.

WHAT IS INTELLECTUAL PROPERTY?

The word ‘intellectual’ can be defined as the original creation of one’s mind. The word ‘property’ implies an asset which can be owned, possessed, leased, or can be assigned for the use of other. Thus, under intellectual property, a person uses his own intellect, to create a belonging, which is unique and distinctive from others. As a result of this creation, these creators are called the owners of that intellectual property. By virtue of this ownership, certain consequences flow, due to which others cannot simply copy these creations without permission of the owners. The rationale behind this is, these original pieces of intellect are unique creations of these owners, which they have prepared through their own sweat and toil by putting in their money, efforts, and thoughts. Depending upon the nature of the creation, protection in terms of trademarks, copyrights, patents, industrial designs, plant varieties, geographical indications, etc. can be sought. This entire process, has led to the growth of many industries, including the electronic media industry, by encouraging innovation and development, by showcasing the works of many.

WHAT DOES ELECTRONIC MEDIA CONSIST OF?

According to Gloud and Kolb, “electronic media includes all the impersonal means of communication through which visual or auditory messages are transmitted directly to the audiences.”[1] Simply put, electronic media includes any type of media which uses the electronic technology to its advantage. It may include, but is not restricted to, radio, internet, fax, DVDs, television, or any other medium which requires electricity as well as digital encoding. But for the sake of simplicity, electronic media can be divided into the following broad categories-

·       Broadcasting media (E.g. TV, radios)

·       Storage media (E.g. DVDs, cassettes)

·       Internet media (E.g. Internet websites, applications requiring internet)

By the virtue of industrial revolution, today we see extreme development in areas of technology and communication. Use of visual means, to support mouth-to-mouth communication has enabled reach to a wider spectrum of population. As per a report by UNESCO, electronic media is known to develop the following aspects of a nation, entertainment, debate and discussions, education, socialisation, dissemination of authentic information, integration, etc.[2] However, there is no one particular law clearly defining what entails to be electronic media. Through various case laws such as K. K. Birla vs. The Press Council of India[3], where the judiciary held that a great deal of freedom of speech and expression of individuals is related to mass media, and the case of Secretary Ministry of Information and Broadcasting, Government of India and others vs. Cricket Association of Bengal and others[4], where the Supreme Court observed that it is absolutely essential in the interest of the general public and also to avoid confusion, that the Parliament should take steps to enact a law which shall govern the electronic media.

In spite of not having any specific law for governance of electronic media, there are various other laws such as the intellectual property laws which get intertwined in imposition of electronic media, and regulate the conduct thereof.

RELATION BETWEEN INTELLECTUAL PROPERTY AND ELECTRONIC MEDIA-

With the emergence of 20^th century, an impetus was received by the media sector, which pushed its growth across borders. With the advent of technology, and the idea of global connect, and integration of world with the help of information has become possible. Various treaties like Berne Convention on Copyrights, Rome Convention, Patent Cooperation Treaty, Madrid Protocol, were entered into to facilitate the exchange of intellectual assets across national boundaries. Grant of exclusive licenses to exploit intellectual properties was granted and promoted. This information sharing brought the world closer, but has also raised certain important questions about accountability and extent of usage of data. Intellectual property has always been at the centre of media rights, and has continuously ensured effective protection to the owners of such media products. However, the only and the biggest downside to technology, is that it allows copying, transfer, and manipulation of information and intellectual property easily.[5] If the sources of the information gathered from or not evidently displayed, anyone can pass off the work of another as their own. Since the spectrum and range of electronic media is so vast, it often becomes difficult for the owner to keep a track of who actually has access to his work. Even if the owner does know who has access to his work, it is quite expensive and rigorous for him to actually take action against the copycat. However, it is technology itself which also provides effective and more efficient ways of tightly controlling the distribution of the owner’s work. If utilised appropriately, technology can be used to limit and monitor the access which the owner provides.

KINDS OF IP TRIGGERED IN VARIOUS KINDS OF E-MEDIA-

By and large, trademarks, patents and copyrights are the most used and exploited intellectual properties which have role to play in the electronic world. However, a segregated understanding of which intellectual properties assume importance in which kind of electronic media, would be beneficial-

1.     Broadcasting media-

As per the Copyrights Act 1957[6], a broadcast means, “any communication to the public either by means of any wireless diffusion, or by wire, and also includes a re-broadcast.” Hence, as per this definition, any organisation, which is employing means to communicate to the general public by using the specifications mentioned would be considered broadcasting media. Hence, the main intellectual property getting triggered under this media type would be copyrights. Generally, companies engaged in television media, and radio would be considered broadcasting media. Section 37 of the Copyrights Act deals with the rights of broadcasting organisations. Usually, this special right subsists for about 25 years from the beginning of the calendar year next following the year in which the broadcast is made. Then, Section 31D allows the broadcasting organisation to broadcast already published works, subject to specified conditions.

While it is necessary to consider the rights of broadcasters, it is also important to look at the sections in favour of the copyright owners. It is essential for the media houses to know and honour the author, whose work they are utilising and publishing on their mediums. Hence, it is important to understand the differentiation between author and owner of a copyright, as the media houses while utilising such copyrights have to look at the same. As per Section 17 of the Copyright Act[7], primarily, the author is considered to be the first owner of the copyright. However, as the copyright falls into the hands of others, its ownership changes. Generally, for the works which are made in the course of employment or under a contract of service, the employer would be the first owner of that copyright.[8] For a musical work, the first owner would be the composer. However, if such work is commissioned by another, for example by a film producer, the film producer would become the owner of the copyright only to the extent of using the work for the purpose for which it is commissioned. The producer of a movie would only get a right to incorporate that music, and the remaining rights rest with the music composer himself.

Another category of intellectual property having importance in the broadcasting media, would be trademarks, since a great deal of work in broadcasting is with regards to having a unique name for their content. Trademark can be any a sign, symbol, phrase, or any other indication which can identify the source of the concerned goods or services. A trademark can be used to distinguish the goods or services offered by one entity from those of the other. By and large, there are two essential characteristics of a trademark, distinctiveness and non-deceptiveness. Trademark could be distinctive only when it is non-descriptive in nature, wherein the mark does not simply describe the goods or services which it represents, as in the case where the Trademark Office refused registration of a podcast name as, “serial”, since it was too obvious in nature.[9] In terms of non-deceptiveness, there could be two types of deceptions. First would be deceptive similarity covered under Section 2(1)(h) of the Trademarks Act[10] and second could be miss-description covered under Section 2(1)(a) of the Trademarks Act[11]. For example, in Horlicks Ltd. and another vs. Heinz India Private Ltd.,[12] the court established that advertisement of two products would be deceptive if the consumer is not equipped with the knowledge to distinguish between the two competitors. Secondly, a trademark would be said to have false trade description, where a misleading or untrue image is portrayed of the goods or services through the trade name.

2.     Storage media-

Storage media mainly includes organisations which are into the reproduction, downloading, and making copies of intellectual assets. Various means such, DVDs, hard drives, pen drives, floppy, cassettes, etc. could be employed for the same. Hence, the companies which are into the manufacturing, supply, and use of these means would come under the ambit of storage media. The Intellectual property type which would be of significance here would be undoubtedly copyrights, since the works which are stored in these devices would be copyrighted works. What is almost synonymous with the ownership of a copyright, piracy of copyright. In the age of technology, people try to make quick buck and avoid payment of legitimate taxes and royalties and instead go for a pirated material, instead of the copyrighted works. In matters of piracy, not only is the government at loss in form of tax evasion, but the owner of the copyright is also at loss in terms of losing his association with the work. Routinely recorded music and video tapes of movies and television programmes are recorded, sold, and even distributed in many parts of the world without any compensation to the authors, publishers, and producers. In fact, it would not be wrong to say that with advancements in the techniques of recording and reproduction of audios, the pirate’s job has become rather easy.

What would also be important, are trademarks. Once the protected works of the owners are stored, and are subject to distribution, they are said to fall in hands of the public. Therefore, any competitor coming with identical trade name for their work, could affect the commercial gains of the owner negatively. It is hence very important for the media companies to understand the need to adopt a good branding strategy which can not only help them to convey information across, but would also catch the attention of customers. Therefore, while choosing a trademark, it is essential for the companies to go for a mark which is not only distinctive, and non-descriptive to the services that they are providing, but should most likely be a coined word (e.g. VIACOM 18), or at the most arbitrary (e.g. Fox TV) in nature.

3.     Internet media-

The internet-run industry is today booming, and is at an all-time rise. Internet media usually includes companies like social media organisations, applications running on internet, basically every organisation which employs internet as their prime source of income. This the electronic media category, where all the three categories of intellectual property would be of significance.

First, speaking about trademarks. In the digital era, where domain names have become the new identities, and are widely used not just for locating the online existence, but also for the purpose of advertisements, and commercials. This online presence of organisations, has also facilitated the online infringement of the goods and services owned by these organisations. Domain names can be considered akin to having a registered trademark. In terms of their acquisition, registration, and enforcement, they are quite similar to trademarks, and hence they often receive the same protection as trademarks. However, the main distinction and often the point of contention between the two is that, domain names are available globally, and trademarks have a national application. World Intellectual Property Organisation (WIPO), established a Joint Recommendation Committee[13] in order to resolve the contradiction between trademarks and domain names, and how trademark owners can use their marks on the internet. As per WIPO, in case of a conflict between a trademark and a domain name, the complainant has to establish three things, first that the domain name is identical to the trademark in question, second, the registered user of trademark does not have any interest in the domain name, and lastly, the domain name has been registered and is being used in bad faith. Hence, if a trademark owner is sufficiently able to establish these three contentions, he can bring out a suit against the domain owner. Provisions such as these, actually ensure the protection of non-digital marks, and also paves the way for creation of unique and plagiarism-free domain IDs. These independent domain IDs, are extremely important for the progress of e-commerce, and also establish the development and progress of one of the most important mediums of electronic media, being the internet.

In terms of copyrights, the social media companies are usually considered intermediaries, wherein they only host the works of others. Either the copyright owners publish their own works on social platforms, or people post the copyrighted works of others on social platform. In the case of Super Cassettes Industries vs. Myspace Inc. and Anr.[14], the court held that a social media platform like MySpace although acting only as an intermediary, cannot be allowed to be privy to content being posted on their platform which is a copyrighted material of another without the permission of such copyright owner. Such an act would amount to infringement. Hence, the court held that regarding the material which is uploaded on the platform of MySpace, the social media company needs to check the ownership and validity thereof. As and when, any copyright owner informs the social media company regarding their copyright over a material which is available on their platform, they should promptly take it down.

Lastly, speaking about patents, within social media technologies, a patent can lie over a broad spectrum of things, such as privacy settings, augmented reality, reduction of processing power, to automated suggestions, to improved network connectivity, integration with other applications, etc.[15] Social media companies usually benefit enormously when they chose to patent their technology, because it not only gives them a leverage over all of their competitors, but also gives them an added layer of protection against any chances of reverse engineering. Patented technology can enable the companies to gain loans by collateralising the same. Not to mention the royalty or the licensing fees that they could receive by assigning such patent to others. Not just the social media technology, in fact any technology which the electronic media can use to better themselves, can be patented and brought within the ambit of legal protection. Perhaps the only downside to patenting is, that the specifications of the technology will go into the public domain after 20 years of the registration of the patent.[16] However, considering the fast pace at which the technological advancement in our country is happening, the patenting company would easily be able to develop new technology, and patent it then, or create noticeable developments in their existing patented technology.

CONCLUSION-

 By virtue of industry 4.0 that we are living in, electronic media has taken over most of our functionalities. We are dependent upon various electronic medium for our daily necessities. As the world progresses, space needs to be created for authentic sharing of information, and an environment of greater accountability. While the electronic media organisations operating within the industry are booming day by day, they need to be aware of the intellectual legislations which are applicable to them. Gone are the days, where they could only worry about post-mortem effects of their functions. Intellectual property is assuming greater importance today, wherein a single infringement can take down the entire organisation. Therefore, for the sake of development within the electronic media industry, and for the sake of innovation, intellectual property needs to be given the utmost priority.