intellectual property rights 7-feb-20131 © aberystwyth university and frank bott

Intellectual Property Rights

7-Feb-2013 1© Aberystwyth University and

Frank Bott

© Aberystwyth University and Frank Bott 2

Types of rights

copyright patents confidential information trade marks design rights moral rights.

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Copyright

protects original literary, dramatic, musical

and artistic works; sound recordings, films, broadcasts

and cable transmissions; the typographical arrangement of

published editions.Things protected are called "works".

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Software copyright

The 1988 Copyright, Patents and Designs Act states that the phrase 'literary work" includes a table or compilation, a computer program and preparatory design material for a computer program.

The EU directive 91/250 states that “Member States shall protect computer programs, by copyright, as literary works. For the purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material.”

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Owner’s rightsCopyright gives five exclusive rights to the owner of the copyright:

the right to copy the work; the right to issue copies to the public; the right to perform, play or show the work to

the public; the right to broadcast the work or transmit it on

a cable service; the right to make an adaptation of the work.

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How long do the rights last? In the EU, 70 years from the death of the

author (in the case of a literary or artistic work, or software);

In USA, the same for works published after 2002, but can be 95 years after the date of publication in some cases, for earlier works;

In Canada, 50 years from the death of the author.

© Aberystwyth University and Frank Bott 67-Feb-2013


Database right (Copyright and rights in databases regulations 1997)

If a database is the author’s “own original intellectual creation”, it is treated as a literary work and subject to copyright protection.

If there has been “substantial investment in obtaining, verifying or presenting the contents of the database”, then it is also protected by the database right. (This lasts for 15 years, much less than copyright but much longer than the database is likely to be useful.)

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Who owns the copyright?

Copyright is owned by the author(s) of the work except that:

If the author is an employee and the work is an original literary, dramatic, musical or artistic work created in the course of employment, then the copyright belongs to the employer.

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Who owns the copyright? (cont) An independent contractor is not an

employee and so will own the copyright in work he does unless agreed otherwise.

Copyright can only be transferred in writing.

Copyright does not need to be registered. It comes into existence at the moment the work is recorded, in writing or otherwise.

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Infringement of copyright

Anyone who, without consent, does any of the five things that are the exclusive right of the owner of the copyright has committed primary infringement of copyright.

Secondary infringement occurs when an infringement is performed knowingly and in the course of business.

Primary infringement is purely a civil matter. Secondary infringement can be a criminal offence.

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Registering Copyright In Britain and Europe, full copyright

protection comes into being immediately the work is ‘fixed’, i.e. recorded in some form.

In the USA, protection is very limited unless copyright has been registered with the US Copyright Office.

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When is a copy a copy? Copyright is breached by copying ‘the

whole or a substantial part of the work’. ‘Substantial’ can mean just a key part,

which could be quite small. Non-literal copying, e.g. using the same

design to produce a similar system written in a different language.

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Licensing

A licence allows someone (the licensee) to use a work for some or all purposes but the owner retains ownership.

Licences can be exclusive or non-exclusive. The licence may be for a fixed period or it may

be in perpetuity. In an assignment, the copyright owner transfers

some or all of the rights of ownership to someone else (the assignee).

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Examples of licencesRetail software: a licence in perpetuity to use one

copy of the software on a computer of your choice. Non-exclusive.

Professional packages: one year licence, renewable, to run the software on a server with a specified maximum number of simultaneous users. Non-exclusive.

Marketing agreements: exclusive licence to sell sub-licences in a specified geographical area.

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Open source licences / free software

An open source licence allows the source code to be used, modified or shared, subject to certain conditions. It is not necessarily free.Free software can be used without payment but the source is not necessarily available and modifying it may not be permitted.

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Assignment

Copyright may assigned for a limited period or forever. Copyright in future works may be assigned.

Assignments must be in writing and signed by the copyright owner.

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What you can do fair dealing, copying for:

private study or research; criticism or review reporting current events

making back-up copies; selling on; decompilation for interoperability; error correction.

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How can copyright owners enforce their rights? search and seizure; injunctions – court orders restraining

people from infringing copyright; damages; claim for profits.

Powerful copyright owners often prevent legal publication of copies by threatening action that the publisher cannot afford to defend.

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© Frank Bott and Aberystwyth University 19

Oroyan and Perreira (Hawaii)

Selling modified X-boxes preloaded with pirated games and videos.Perreira sentenced to four months imprisonment, four months of home confinement and three years of supervised release, on a charge of criminal copyright infringement. http://www.justice.gov/criminal/cybercrime/perreiraSent.html

3 March 2013

© Frank Bott and Aberystwyth University

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CA v. Rocket Software complaint filed on 1 August 2007 in US District

Court in New York; CA claimed $200 million for alleged infringement of

copyright in its tools for IBM DB2 users; alleged that programmers working for CA were

recruited by Rocket and took copies of the software with them, which were used in the development of Rocket’s competing products.

settled out of court with Rocket agreeing to license the copyright from CA, although not admitting fault.

http://www.ca.com/files/inthenews/spatt_ruling.pdf

3 March 2013

http://www.ca.com/files/inthenews/spatt_ruling.pdf


Navitaire Inc v easyJet Airline Company and Bulletproof Technologies Inc. England and Wales High Court, 30 July 2004

easyJet were dissatisfied with the OpenRes ticketless seat booking system that it had bought from Navitaire;easyJet commissioned Bulletproof to produce a new system with the same functionality and user interface;Navitaire sued easyJet and Bulletproof for breach of copyright.

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Specific instances in which it was claimed that Navitaire’s copyright was infringed

user keyboard commands screen layouts and icons business logic database structure copying of the OpenRes database for the

purpose of migrating the data.http://rpc.oxfordjournals.org/content/123/4-6/111.full.pdf+html

(only from on campus)http

://www.twobirds.com/English/News/Articles/Pages/Software_copyright_infringement_claims.aspx

3 March 2013

http://rpc.oxfordjournals.org/content/123/4-6/111.full.pdf+html

http://rpc.oxfordjournals.org/content/123/4-6/111.full.pdf+html

http://www.twobirds.com/English/News/Articles/Pages/Software_copyright_infringement_claims.aspx




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SAS Institute Inc v. World Programming Ltd, EWHC (Chancery Division), 23 July 2010

SAS is a world leader in data analysis and statistical processing software, through its SAS system.

WPL developed a system with the same functionality and interfaces, which it started to sell in competition to SAS. There was no suggestion that the code was copied.

Described as a David against Goliath case.

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SAS AllegationsSAS alleged that WPL had copied the manuals for the SAS System and

thereby infringed the copyright in the SAS Manuals. By copying the SAS manuals, WPL had indirectly copied

the programs thereby infringing the copyright in them. WPL had used a version of the SAS System known as

the Learning Edition in contravention of the terms of its licences, and thereby both acted in breach of the relevant contracts and infringed the copyright in the Learning Edition.

WPL had infringed the copyright in the SAS Manuals in creating its own documentation.

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Although, it found some infringements and agreed with SAS over the breach of contract, the court dismissed the important parts of the SAS claim.

However, the judge referred several issues to the European Court of Justice for clarification:

Does copyright in computer programs protect programming languages from being copied?

Does copyright in computer programs protect interfaces from being copied where this can be achieved without decompiling the object code?

Does copyright in computer programs protect the functions of the programs from being copied?

http://www.bailii.org/ew/cases/EWHC/Ch/2010/1829.html http://www.technollama.co.uk/landmark-software-copyright

-case3 March 2013

http://www.bailii.org/ew/cases/EWHC/Ch/2010/1829.html

http://www.technollama.co.uk/landmark-software-copyright-case

http://www.technollama.co.uk/landmark-software-copyright-case


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Cantor Fitzgerald International V Tradition (UK) Ltd and othersEWHC High Court, Chancery Division, 15 April 1999

Staff from the claimant had been recruited by the defendant to write a system similar to the one they had been writing for the defendant.

They had taken source code and other material with them. Some of this was directly copied and some was used in other ways.

The claimant alleged copyright infringement and breach of confidence.

www.humphreys.co.uk/articles/software_1.htm

3 March 2013

http://www.humphreys.co.uk/articles/software_1.htm


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US Government v. Richard O’DwyerExtradition sought for trial in the USA for criminal copyright infringement.O’Dwyer owned and operated the web site TVshack.net, which provided links to sites hosting unauthorised copies of copyright films and TV programmes.Funded by advertisements (mostly from US) to the tune of around £230,000.Text of judgement (January 2012):http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/us-

v-odwyer-ruling.pdf

3 March 2013