Intellectual property (IP) refers to the results of intellectual activity in the industrial, scientific, literary or artistic fields. Literary works may include such things as written material, music, drama and paintings. The free flow and use of digital information have an open flank. Copyrights, authorship and other intellectual property rights are difficult to control. There is a need for standard procedures, regulations and laws which are designed to be implemented in technical solutions to enable the controlled trade, storage and use of the intellectual property of individuals as well as the intellectual properties of communities, state organizations and other bodies.
For example:
- Copyright act protects literary and artistic works
- Patent act protects inventions
- Trademark law protects the rights of business to their identity e.g. a company logo
All these concepts have been around much longer than the computer but a digital representation of these has raised various legal issues.
COPYRIGHT PROTECTION
Copyright is a form of protection provided by the laws of a country to the authors of original works in the industrial, scientific, literary or artistic fields where Literary works may include such things as written material, music, drama and paintings. The protection is available to published or unpublished works
Digital representation of IP has made it easier and policing of copyright infringement has become difficult. The Internet is one area where this has become very difficult due to the number of people who are performing copying of IP.
One point of contention is fair use of copyrighted material that is copied for personal use, education or research and not for commercial purpose
Computer Software is considered as copyrightable material including freeware, shareware, and commercial software. Only public domain and open source fall outside the copyrighted restrictions. When you buy software, you are bound by the license agreement. The license agreement allows you to use the software and not to modify, sell or give it away as those rights belong to the copyright holder.
Digital images like photographs, art-like cartoons or complex images are copyrighted material but under fair use, a downloaded image can be used as a screen saver but you are not allowed to distribute or post it on your own website.
Plagiarism is a problem in university campuses where you present another person’s ideas or words as your own but under the fair use practices, you can include someone’s work as long as you identify the source.
Copyright Act generally gives the owner of copyright the exclusive right to do and authorize others to do the following:
- Reproduce the work
- Prepare derivative works based upon the work
- Distribute copies of the work to the public by sale, lease. Licensing or lending
- To perform the work publicly
- Display the copyrighted work publicly
Copyrighted work may include the following:
- Literary works such as computer software etc
- Musical works including any accompanying words
- Dramatic works including any accompanying music
- Pantomimes and choreographic works
- Pictorial graphics and sculptural works
- Motion pictures and other audio-visual works
- Sound recordings
- Architectural works
The following are not eligible for copyright protection:
- Works consisting of entirely of information that is common property e.g. standard calendars, height and weight charts, tape measures and rulers and lists of tables taken from public documents
- Works that has not been fixed in tangible form of expression e.g. choreographic works that have not been recorded or improvised. Speeches or performances that have not been written or recorded.
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries or devices. The above should not copyrighted but patented
- Titles, names, short phrases and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or colouring and instead it is protected by a trademark
For any work to qualify for copyright it must meet the following three criteria:
- The work must be fixed in tangible medium of expression
- It must be original created by the author and not copied from someone else
- It must be creative
Claim for copyright
Copyright exists from the time the work is created in fixed form and in case of works made for hire the employer and not the employee is considered to be the author. Work for hire may include such things as:
- A work prepared by an employee within the scope of his/her employment
- Work specially ordered or commissioned for use such as:
- A contribution to collective work
- A part of motion picture or other audio-visual work
- A translation
- A supplementary work
- A compilation
- An instruction texts
- A test
- Answer material for a test
- An atlas
- A contribution to collective work
PATENTS
A patent protects inventions and encourages inventors to innovate by granting the patent holder exclusive rights to the invention for 20 years. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission.
For an invention to be patentable it must have the following characteristics:
- It must be new
- It must have an inventive step that is not obvious to someone with knowledge and experience in the subject
- It should be capable of being made or used in some kind of industry
- It must not be:
- A scientific or mathematical discovery, theory or method
- A literary, dramatic, musical or artistic work
- A way of performing a mental act, playing a game or doing business
- The presentation of information, or some computer programs
- An animal or plant variety
- A method of medical treatment or diagnosis
- Against public policy or morality
- A scientific or mathematical discovery, theory or method
A patent granted must be renewed every year after the 5th year for up to 20 years.
The owner of a patent has the following rights:
- To be granted the patents where the relevant requirements have been fulfilled
- To preclude any person from exploiting the patented invention
- To conclude the license contracts.
- To obtain an injunction to restrain the performance or likely performance by any person without the patent holder authorisation
- To claim damages from any person who having knowledge of the patent disobeyed terms of the patent
- To claim compensation from any person who violates terms of the patent provided that the person concerned had:
- Actual knowledge that the invention he/she was using was patented
- Received written notice that the invention he/she was using is patented.
- Actual knowledge that the invention he/she was using was patented
An applicant or owner of a patent has the following obligations:
- To disclose the invention in a clear and complete manner
- To give information concerning corresponding foreign applications and grants
- To pay necessary fees to the authority granting the patent
- To refrain from making undesirable provisions
A patent holder has the right to preclude any person from exploiting the protected invention by the following acts:
- Making, importing, offering for sale, selling and using the product
- Stocking such product for the purposes of offering it for sale, selling or using the product
- Using the process or doing anything
A patent holder has the following limitations on rights:
- The patent does not extend to acts done for scientific research
- The patent does not extend to acts in respect of articles which have been put in the market
- The patent does not extend to the use of articles on aircraft, land vehicles, or vessels of foreign countries
- Provision on compulsory licenses for reasons of public interest
- The patent rights do not extend to variants or mutants of living forms or replicable living matter that is distinctively different from the original
TRADEMARKS
A trademark is a word, name, symbol or device used to distinguish one company from another. Under some circumstances, trademark protection can extend beyond words, symbols and may include other aspects of a product such as its colour or its packaging which falls under the category of “Trade dress”
Trademarks make it easier for consumers to quickly identify the source of particular goo goods instead of reading the fine print.
Two issues arise in the use of trademarks:
- Use of words, or symbols that could be confused with particular known company trademark e.g. Mikesoft and Microsoft
- Obtaining of a domain name that include a company’s trademark a practice referred to as cybersquatting.
In order to serve as a trademark, a mark must be distinctive, that is it must be capable of identifying the source of a particular product.
For distinctiveness these marks are grouped into four categories:
- Arbitrary or fanciful mark which is a mark that bears no logical relationship to the underlying product e.g. The words mobitelea
- Suggestive mark which is a mark that evokes or suggests a characteristic of the underlying product e.g. Coppertone.
- Descriptive mark which is a mark that directly describes rather than suggests a characteristic or quality of the underlying product such as colour, odour, function, dimensions or ingredients for example “HOLIDAY INN”
- Generic mark which is a mark that describes the general category to which the underlying product belongs for example the word “COMPUTER” is generic for computer equipment.
The rights to a trademark can be lost through:
- Abandonment when it is discontinued with an intent not to resume its use or non-use for three consecutive years since trademarks only protects marks that are being used
- Improper licensing or assignment where a trademark is licensed without adequate quality control or supervision by the trademark owner
- Genericity where trademarks that are originally distinctive can become generic over time thus losing the trademark protection.
Infringement of a trademark can occur when subsequent parties use the mark of the company that holds the rights to the trademark. In deciding for infringement, the following factors need to be considered:
- Strength of the mark
- Proximity of the goods
- Similarity of the marks
- Evidence of actual confusion
- Similarity of the marketing channels
- Degree of caution exercised by the typical purchaser
- Defendant’s intent
A trademark can be diluted and a dilution claim can be brought only if the mark is famous. In deciding whether the trademark has been diluted the following factors are considered:
- The degree of inherent or acquired distinctiveness
- The duration and extent of use
- The amount of advertising and publicity
- The geographic extent of the market