naavi.org has often advocated that "Over Regulation" is bad for the
society. The dangers that have been highlighted are the possibility of
"Power" being misused by the regulators and "Corruption" taking root. Over
regulation also leads to unmanageable work load on the regulators and enforcers
forcing them to be "Selective" in prosecution and "Dis proportionate Punishments"
being meted out to "Teach a lesson to Others". All these remain issues
which are relevant to the Internet regulations in India.
Another angle of "Over Regulation" which is becoming increasingly evident
in the American society is a tendency of some "Over Enthusiastic Litigants"
(OEL) who have a "General Intolerance of the other members of the Society
and are prepared to "Misuse Law" for unrealistic personal gains.
The concept of Intellectual Property Rights were built on the need to
protect "Authors" and "Inventors" from exploitation by unscrupulous persons
in the society who had access to better money resources. "Copyright" and
"Patent" was born out of this consideration. Thus "Copyright" and "Patent"
were rights aimed "Against Exploitation of the Society".
The "Trademark" right however has a different theme. It is to protect
the Consumer from being mislead or help him get better quality service
or product from a "Reliable" source which can be "Identified" through the
trademark.
Trade marks can be created by appropriate "Registration" when a new
product or service is introduced. In such cases, the " Implicit Promise"
behind the "Trade Mark" gets built up with the Consumers trying out the
product and being satisfied with it.
However, when "Brand Names" are created through "Advertising Exposures"
which build a "Perceived Value", the "Brand" becomes a function of the
"Power to Spend Advertising Money". In such a case "Brand" is a tool of
the "Rich" to create "Non Existent Features" in a product through "Incessant
Claims". Thus "Trade Marks" born out of "Brands" are tainted with the possibility
of being a "False Creation by exploitation of the Media by the Rich".
Over the last few years, the clashes between "Trade Mark Owners" with
Domain name owners in the Cyber world has lead to the concept of "Trade
Mark" as a "Desirable Right" are being questioned. It appears that the
recent actions by the Over Enthusiastic Litigants (OEL) has thrown a further
challenge to the society to think of a review of the existing system.
Indians are already sick with the attempt of Maruti Udyog Ltd, trying
to establish its right on any Domain name using the string of characters
"maruti". WIPO has exposed its irrationality and ignorance in upholding
the views of Maruti Udyog without understanding the implications and consequences.
Now we await the deliverance of "maruti" by the Delhi High Court which
is examining the appeal.
The situation in India was corrupted with the Yahoo case against Yahooindia.com
and Rediff case with radiff.com. To my mind both these cases represent
adhoc views at a point of time when law is evolving and need to be reviewed.
For example, to most Indian minds, the word "Yahoo" instantly recalls the
shout of "Shammi Kapoor" in a famous Hindi song. If I who do not often
see Hindi films can recall the song so strongly, whenever the word "Yahoo"
is heard, I think the "Trade mark" ( as a audio) or "Copyright" (on the
word) for Yahoo belongs to the writer of the song. I am sure that
the song was written and picturised long before Yahoo.com came into being.
I
wish a PIL in India should explore whether the multi billion dollar mark
"Yahoo" belongs to an Indian film song script writer.
Same way radiff.com appears to be a variant of "radish.com" as much
as it is held a variant of "rediff.com". The infringement is therefore
only a figment of imagination.
(Let me however clarify that the infringement is attributed to the content
and the look and feel of the site design, I have no objection. My objection
is limited to the claim of infringement on the basis of similarity of names).
The Amazon patent has been written about a lot and has now under threat
of a possible rejection in Japan.
The linking norms set by Ansette.com.au (See
details here) takes the concept of tresspass through hyperlinking
to a new dimension.
Now the International auto giant Ford is taking the Domain name litigation
to yet another new plain. Readers of naavi.org remember that Ford
once attempted (Thank God! it failed) to claim rights on the domain name
"Model-E.com" because of the association of Model-T cars to Ford. Now Ford
has successfully launched an assault on the holder of jaguarcenter.com,
an animal activist working on info about Jaguar the wild animal of the
Big Cat family. Readers would be surprised to know that even after the
owner has given up the name because he did not want to fight, Ford is hoisting
a case for damages to the extent of US $ 3000 on the registrant of jaguarcenter.com.
Time to suggest Natioanl Geographic to stop producing programmes on "Jaguar"!..Height
of arrogance one would say.
Now yet another interesting but sad case has been reported from a group
of Copyright lawyers, who have hoisted a case against a person who
posted a "Building Code" drafted by the group and forwarded to the local
legislature for adoption as a law. This has raised the question of whether
"Law Can be copyrighted". If tomorrow Dr Ambedkar's family starts claiming
copyright on Indian Constitution (Hopefully with all the members of the
Constitution Committee), every time the constitution is quoted in some
form , a royalty may be claimed by the writers of the constitution.!! (Forget
the past, if ITA-2000 is copyrighted by the drafting committee, I
will have to remove it from naavi.org!).
Do we see how ridiculous the OEL s can be?
Presently, a case is building up in India with Indya.com getting an
exclusive right to host KBC related information.(See
Details Here) If any other site talks of KBC, they can be hauled up
for Copyright violations. We have already heard of Onida issuing
a few notices related to domain names. Have OEL s landed in India?
Are we seeing the early days of "Copyright Intoxication" hitting the Indian
market? ..a time to ponder.
It is the irrational actions of such OEL s that pose a threat to the
very continuance of IPR s in the future society. If Law is bent to sever
greedy ends, the society will revolt and even desirable laws will be demolished.
The Cyber society might have reluctantly accepted the Napster verdict,
but let law makers and law enthusiasts beware. Any legislation that has
a wide spread condemnation of the society, will face the risk of being
ejected.
We in India are familiar with such issues in different contexts.
It is worth mentioning them here for the purpose of helping us to
understand the implications. First was the case of the "Babri Masjid Demolition".
( International audience who may not know the details may
refer here) where a mob of people took law into their hands in a moment
of emotional outburst. Second was the case of the citizens of the state
of Tamil Nadu which elected to power by a overwhelming mandate, a person
who was technically held not qualified to stand for election itself.
( International audience who may not know the details may refer
here)
In the light of our experiences of the real world, it is necessary to
remember that the OEL s will ultimately face the wrath of the community
and the backlash could be so strong that the very concept of Intellectual
Rights may be turned upside down. Let's not forget that if there had been
no exploitation by Capitalists, Communism would not have been born. Now
that Communism is nearly dead in the real world, let's not give it a reason
to survive and grow in the Cyber world.
Naavi
May 15, 2001
Read
about the Ford case against jaguarcenter.com
Can
Law be copyrighted?
Read
about the KBC- Indya.com deal
Ansette.com.au
sets new norms for hyperlinking
What is Babri Masjid
Demolition Issue?
What is the Tamil Nadu
Election Issue?
Do readers have a views on this? or suggestions?. If so, Your
views can be sent here
