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Intellectual Property

Ethical and Professional ComputingMichael Heron

+Introduction

One of the things that you will do as you go through your careers is develop intellectual property. Understanding your rights and responsibilities with regards to this is

important.

In this lecture we’re going to talk about what constitutes intellectual property, how it is assigned, and why you need to care. And you do. Sorry.

Some of the reasons for this we touched on in our lecture on the killer robot. Others are new today.

First, a video: http://www.youtube.com/watch?v=7Q25-S7jzgs

+Ownership of Work

Usually, salaried and contract employees work as ‘work for hire’ That which is created as part of his or her job is owned by

the company.

Work ownership is usually assigned, or in more flexible environments emerges organically as a result of established ‘authorial credibility’

The individual who did the work is not considered to be the ‘official author’ The company is the legal author of the work, and thus the

exemptions and legal obligations fall to them.

+Code Ownership

In other contexts, ownership is strictly defined by a contribution agreement. A license, in open source terms.

You as an author can set out a licensing agreement which defines the terms under which others can use your work.

Many open source projects require a particular license. Contributions will not be accepted if not released according to that

license. This is as much to ensure conceptual tractability as anything else. Consider wikipedia.

Unless otherwise stated, licenses are revocable. Someone can come along later and rescind your right to use their

work.

+Work Ownership and Copyright

The legal author of a piece of work can determine the extent to which it can be copied. In work for hire, it is the employer and not the employee.

Copyright is automatically granted (although it can be hard to prove you own the copyright if you don’t take additional steps to prove it).

There are certain exemptions to an author’s absolute right to police how a work may be copied and used. These vary from region to region. Fair use Review or parody Format shifting

+Work Ownership and Derivative Works

An open source license is an expression of the author’s copyright.

In it, the author will outline the rights of users with regards to modifying the work.

Modified work is classed as a derivative work, and a license will usually limit what terms under which derivative work may be released. Often a ‘you can create derivative works provided this license

remains intact’ provision.

Bug-fixes and such count as modifications to code, which results in the changed version being a derivative work of the original.

+Derivative Work Ownership

Who owns a derivative work? In the case of ‘in house work’ where all developers are ‘work for hire’,

it’s still the employer.

For projects with no work for hire, it becomes more complicated. What about adding a file to a collection of existing files? What about static or dynamic linking? What about extensions to an existing system? Systems with multiple components? What about work that makes use of other works but doesn’t infringe

on them?

The exact nature of what counts as a derivative work is a legal grey area, like so many things, and the ownership is also hard to assign.

+Derivative Work Copyright

In order for an author to have derivative work copyright, it must satisfy copyright law’s requirement of originality. You can’t just rewrite what exists in an unoriginal way and assert

derivative work copyright.

The rights accrued to the owner of a derivative work are more limited than that of the main copyright holder, and they are not reciprocal. You are under no obligation to make your code available to the

original copyright holder, but must be wary of the dangers that go along with licenses being rescinded.

Bear in mind little of this has been legally tested in anything other than the most restrictive ways. It’s all a legal grey area.

+Transformative Derivative Works

One other consideration in certain jurisdictions is the extent to which a derivative work is transformative. The degree to which it provides a new benefit that was not

previously available.

For example, a band doing a largely generic cover of a song is not a derivative work – there is no originality and there is no transformative benefit.

A radically different scoring that gave a new perspective (c.f. the various different versions of Leonard Cohen’s Hallelujah) might classify as being transformative. http://www.youtube.com/watch?v=WJTiXoMCppw http://www.youtube.com/watch?v=vIw0ewEsNHs http://www.youtube.com/watch?v=xaWLsgxDzuw

+Copyrights, Trademarks and Patents

Three issues that relate to intellectual property are the concepts of Copyright, Trademarks and Patents. They are not interchangeable.

Copyright is the legal concept that covers, as you might expect, the right to copy. More importantly, the right to say who else can copy.

Initially, copyright was intended to encourage innovation by giving inventors an exclusive right to commercially benefit from their inventions. Limited by a copyright term at which point it falls into the

public domain.

+Copyrights, Trademarks and Patents

Three issues that relate to intellectual property are the concepts of Copyright, Trademarks and Patents. They are not interchangeable.

Copyright is the legal concept that covers, as you might expect, the right to copy. More importantly, the right to say who else can copy.

Initially, copyright was intended to encourage innovation by giving inventors an exclusive right to commercially benefit from their inventions. Limited by a copyright term at which point it falls into the

public domain.

+Copyright, Trademarks and Patents

The exact interpretation of copyright differs from jurisdiction to jurisdiction. Although international copyright agreements have gone

some way towards standardising.

Terms of copyright have increased substantially over the years.

http://en.wikipedia.org/wiki/File:Copyright_term.svg

+Copyright

Copyright doesn’t apply to everything. It applies to: Text Images Video and Pictures Audio Recordings Computer Programs.

You don’t need to do anything special to register a copyright. You get it as soon as you fix a representation of something. Proving you did that

though can be more difficult.

Certain things cannot be protected by copyright. Ideas Facts Titles Names Short Phrases

+Trademark

A trademark by comparison is a kind of branding A distinctive sign that differentiates you from a competitor.

There are many things that can be trademarks: Logos Words Phrases Names Slogans

These only apply if they serve to: Distinguish you from another and to indicate the source of a good. Distinguish you from another in the provision of a service. To be used by others for certification. To indicate membership of some form of union or association.

+Trademark

Unlike copyright, trademarks must be registered. Through the Intellectual Property Office for the United

Kingdom.

Trademarks cannot be registered under certain circumstances: Terms that have become customary Terms that are not distinctive Logos that are three dimensional, if the logo mirrors the

product Logos which are protected emblems If they are offensive If they are against the low If they are deceptive

+Patent

A patent is a set of exclusive rights given to an inventory of something in exchange for public disclosure of that invention. They cover how things work, what they do, how they do it,

what they’re made of, and how they are made. (http://www.ipo.gov.uk/types/patent/p-about/p-whatis.htm)

In order to be awarded a patent, an invention needs to fulfil certain criteria: They need to be new Have a non-intuitive inventive step Be capable of use in some way

+Patent

Certain things cannot be patented. Scientific or mathematical theories or methods Literary works (use copyright for this) A way of performing a mental act (such as a way of playing a

game) The presentation of information Animals or plants Medical treatments or diagnosis Anything against public policy or morality

Patents must be actively registered, and actively renewed. Additionally, they extend only to specified patent zones. If you

want international patents, you’ll need to pay for them.

+Infringement

Copyright infringement is the one that is most in the public consciousness. As a result of bittorrent and other such sites for easy

obtaining of ‘content’

The sheer scale of infringement makes it difficult to fight. And the decentralized nature of the internet makes it easy

for infringers to ‘fight back’

All kinds of methods used to identify infringement. Digital fingerprints Downloading files under the authority of a copyright holder ‘Dial home’ systems

+Infringement

Trademark infringement is usually easier to detect. After all, a trademark is a public declaration.

It only applies in the case of customer confusion – when one trademark is likely to confuse likely customers of another.

Several criteria usually used: Strength and similarity of the mark Proximity of the goods and category of goods Evidence of actual confusion Marketing channels used Likelihood of expansion into competing product lines

Consider Apple Computers versus Apple Corps

+Infringement

The biggest case in recent years regarding patent infringement has been Apple versus Samsung.

Patent infringement occurs when a party uses, manufactures, sells or imports a patented technology.

Such claims are highly contentious and the growing practise of patent trolling has resulted in it being a highly charged issue.

Patents by themselves have become commercial valuable, even if someone has no intention of using it. Some large companies even go to the extent of buying

smaller companies because of patents they own.

+Infringement

Unfortunately, these protections are conceptual in the cases of most people. These are legal protections if you can afford to pursue claims.

In many cases, copyright infringement is considered an ‘acceptable risk’ Because the copyright owner is unable to finance an often

expensive legal battle.

This can make certain kinds of protection infeasible. Trademarks imply a burden of policing on the holder of the

trademark. The owner is required to make sure that the mark doesn’t

lose distinctiveness or dilute the brand.

+Infringement

There is a danger of a protected trademark being conflated with a general concept. At which point the trademark ceases to have any use in being

distinctive.

Several examples: Hoover for vacuum cleaner Xerox for photocopying Aspirin for acetylsalicylic acid Yo-yo for – well, yo-yos

Trademark erosion occurs when a trademark becomes so common that it starts to become a generic name. Owners have the legal responsible of preventing erosion by policing

their trademark. Sometimes known as genericide.

+Infringement

Trademark owners must aggressively police their trademarks. Which is why a number of companies and IP owners crack down

heavily on ‘fan work’

When a trademarked property is used without proper authorization, trademark owners must be prepared to battle the use legally. Often with a cease and desist letter from a lawyer.

Often this is a no-win proposition. The brand is often damaged either way, in the protecting and in

the tolerating. Not always though - http://mashable.com/2012/07/22/jack-

daniels-trademark-letter/

+Infringement

Typically there is a progression of avenues available to those who wish to protect their IP. Before lawyers need to be involved.

First, it is necessary to ensure you have the right to take legal action at all. Are you the legal owner of a piece of intellectual property? If not,

take your seat.

Next, you need to confirm that an infringement has taken place. Get some second opinions. What seems like obvious infringement to

you may not seem so clear to others. http://www.youtube.com/watch?v=rbhsdNDF0KM http://www.youtube.com/watch?v=wW5wwi4ahLc http://www.youtube.com/watch?v=f4YquaDr5a8

+Infringement

Next, it’s important to gather evidence which is the key to a successful case being made. Get a copy of the infringing work. Get a copy of your own work, annotated with examples of similarity.

If formal metrics are available, use those to generate a similarity report.

A copy of any registered form of your work (if it’s different) Sometimes work will evolve after it has been registered. Both the

current and original form should be analysed If formal registration is available, make a note of the date of

registration. Get dated documents that show your ownership over the IP. Put together a portfolio of drafts, diagrams and notes to show the

evolution of ideas

+Infringement

Next, contact the infringer and put forward some fair and reasonable way to settle the dispute. This should incorporate an overview of your case. What is being infringed? How is it being infringed? What kind of IP is being infringed. State that the infringement must stop and outline by what criteria you

will define it as having stopped. State a deadline for compliance. Indicate, if necessary, your willingness to pursue legal avenues if your

requests are not met.

Usually the goal here is to seek an end to infringement, not seek financial compensation which can be difficult to prove.

Further steps involve seeking legal advice from a qualified solicitor.

+Prior Art

One final topic that needs addresses is the concept of prior art. Prior art is the set of public information that may be relevant to a patent’s

claim of originality. If there is no originality, the patent is invalid.

Trade secrets (information not disclosed to the public) does not count as prior art in most situations.

Prior art requires enough information that a person skilled in the art of a field would be able to use it to invent the thing covered by a patent.

The due diligence associated with patents requires a prior art search before a patent is granted, ensuring: Novelty Validity Clearance

+Example: Apple v Apple

Two companies with the same name. Apple Corps, the Beatles’ record company Apple Computers, the computer company.

Case was fought, on and off, from 1978 to 2006 over the issue of trademark.

Initially filed by Apple Corps against Apple Computers citing trademark infringement. Apple settles out of court with an $80k settlement. As a

condition of the settlement, Apple Computers agree to never enter the music business, and Apple Corps agree to never enter the computer business.

+Example: Apple v Apple

In 1986, Apple Computer added significant sound capabilities to their computers. Apple Corps sued again, claiming violation of the 1981

agreement. Apple was forced to end in many ways the evolution of their

sound capabilities in their computer.

In 1991, Apple Computer was forced to pay around $26M to Apple Corps for including the sampling sound system Chime to the Mac OS. Apple Corps held the trademark on ‘any creative works whose

principal content is music’ Case hung on how the software was distributed – on a physical

disc, which meant they were guilty of selling and distributing physical musical materials.

+Example: Apple v Apple

In 2003, Apple Corps sued again for breach of contract in relation to the creation of the iTunes Music Store. Case opened in 2006. Apple Computers was found not to have infringed. The parties acknowledge that certain goods and services within the Apple

Computer Field of Use are capable of delivering content within the Apple Corps Field of Use. In such case, even though Apple Corps shall have the exclusive right to use or authorize others to use the Apple Corps Marks on or in connection with content within subsection 1.3(i) or (ii) [the Apple Corps catalogue and any future music], Apple Computers [sic] shall have the exclusive right to use or authorize others to use the Apple Computer Marks on or in connection with goods or services within subsection 1.2 [Apple Computer Field of Use] (such as software, hardware or broadcasting services) used to reproduce, run, play or otherwise deliver such content provided it shall not use or authorize others to use the Apple Computer Marks on or in connection with physical media delivering pre-recorded content within subsection 1.3(i) or (ii) (such as a compact disc of the Rolling Stones music)

+Example: Apple v Apple

In 2007, tensions cooled between the two companies. Apple Inc and Apple Corps announced a settlement in which Apple Inc would assume ownership of all Apple trademarks. Some of these in turn would be licenced back to Apple Corps. The terms of the settlement are confidential.

Some estimates put the settlement at a cost of round $500M for Apple Inc.

The settling of this issue finally allowed for a massive gap in the iTunes catalogue to be filled They were able to start making the Beatles available for digital

download, which was something that could not previously have been countenanced.

The eventual inclusion of the Beatles however was also dependant on another legal battle against EMI.

+Conclusion

Copyright law is complex, but we’re all beholden to it. All the time. Seriously, it’s just crazy.

The rights that you have as someone who develops intellectual property are influenced by several factors. Including the terms under which you work for an employer.

Intellectual Property mostly branches out into three topics. Copyright Trademarks Patents

Each is registered differently, protected differently, and legislated differently.