Of the many laws that govern the realm of media and entertainment, the laws relating to the protection of intellectual property and the rights of the various stakeholders including the producers of the content pose special challenges.

It is commonly perceived that only copyright laws are relevant to the protection and creation of original content. With technological advancements, however, it becomes imperative to examine laws relating to trademark, trade dress, ambush advertisements, protection of trade secrets, contractual obligations Vis a Vis confidentiality & non-disclosure, licensing and assignment of rights in the various aspects of the original content. And with the world turning into a global village, the application of laws to prevent anti-competitive practices become particularly relevant.

The copyrightable content on technology-rich media such as entertainment websites especially information are ephemeral and uploaded periodically are particularly vulnerable since capturing evidence for producing in court is near impossible. This task becomes onerous when courts fail to distinguish between ‘originality’ and ‘novelty’. In a recent decision the DelhiHigh Court imposed costs on the Plaintiff for filing a suit of infringement of a registered copyright. Interestingly the court ignored the Defendant’s acknowledgement of the Plaintiff’s creation on the Defendant’s website, as well as the conflict between the Defendant’s defence that they had a non-exclusive licence from a foreign entity and the Defendant’s pleadings that the artwork was not original!

The IP owners in this sector also have to contend with ‘passing of’, misappropriation and unjust enrichment in situations where not only the content but the form, style and presentation of the said content are also subject to extensive unauthorised reproduction, replication and imitation. This is where, the common law of Torts and the provision of ‘passing off’ under the Trade Marks Act may offer a refuge and a respite to protect one’s rights.

In the absence of a law for protection of trade secrets and confidential information, the incumbent has to fall back on contractual obligations, if any for safeguarding the exchanged information and its use. In the absence of such contracts, the incumbent has little or no recourse to justice. The courts may grant equitable justice as in the Swayamvar case, but, it would still require that one piece of implicating documentary evidence and a very skilful lawyer.

The Information Technology Act 2000,its amendments and Rules are another important set of legislation that can afford some succour to the aggrieved party as would the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 under Section 11 of the Customs Act.

However, jurisprudence is yet to develop in these situations as also for the prevention of anti-competitive practices. It stands to reason that while the laws are in place, there is very little awareness of these laws and its implementation among the owners as well as the enforcers of the rights.