International Intellectual Property Protection of Software: History, Purpose and Challenges

Intellectual Property, Software and E-Health: Trends, Issues, ProspectsOrganized bythe World Intellectual Property Organization (WIPO)and the Government of the Republic of RwandaKigali, June 3 and 4, 2010

Outline

I. Historical Account.

II. Scope of protection.

III. Protection granted.

IV. Exceptions.

V. Open Source Software (OSS)

VI. The Role of WIPO in Copyright. The Development Agenda

I. Historical Account

1970s> Initial Consideration of the issue at WIPO.

Model Law Provisions following a sui generis approach: covering 3 elements of software; similar to industrial designs; shorter term of protection; material reciprocity

1985 UNESCO WIPO Group of Experts> breakthrough towards protection under Copyright.

National legislation> 1991 EU Directive>1994 TRIPS Agreement> 1996 WCT >reasoning (creative expression with functional result)

II. Scope of Protection.

Set of instructions in a language that computers understand in order to achieve a function: Definition in WIPO Model Provisions & National Legislations

Software as opposed to hardware. Physical support/programs.

3 elements of software.

I I. Scope of Protection.

Outside of the scope:Preliminary Design Material Images generated on screen.

Standard of protection under WCT: Irrespective of the form of its expression > not only source code> alignment with TRIPS Computer programs are protected as literary works within the meaning of BC> similar to TRIPS

Exclusive rights.Economic and moral rights:- reproduction- distribution-adaptation- rental-communication to the public/ public performance.- Moral rights: attribution & integrity

III. Protection Granted (1)

Internet Treaties represent international standard for digital environment. Four main elements:

> reproduction applies in the digital environment.

> transmission of content over interactive networks

>limitations & exc. in digital environment

>technological Adjuncts to Protection: RMI & TPMs

III. Protection Granted (2)

III. Protection Granted (3)

• Exercise of the rights: Importance of National Legislation• (BC) Rights lie with the creator and her successor in title>

exceptions: employment relation

• Types of transfer: a) Assignment (a third party takes globally the place of the right owner) b) Licensing (covers specific acts

for specific purpose and time) Exclusive and non- exclusive.

IV. Exceptions.

International standard: The three- step test. In the area of software exceptions developed at national and regional level:

- correction of errors- back- up copies- observe, study or test - Decompilation in order to make a compatible program>

meaning> rights involved- Conditions: purpose/unavailability/ not third party.

V. Patents

Not part of the International standard but allowed under some national jurisdictions (computer implemented inventions)

Protection of the function versus expression.

Same function different language does not conflict with copyright.

Different purpose of protection.

VI. Open Source Software.

Commercial versus OSS. Main features: availability of source code/ possibility of user to access/ reproduce/ modify and redistribute.OSS is free in the sense of freedoms A way of exercising copyright in software Types of OSS license: BSD; GPL.

VI. Open Source Software.

Benefits of OSS.

Business Models: >subsequent> simultaneous, parallel

Advantages and difficulties in mixed platforms> Viral effect of GPL> GPLv3 and software patents> GPL and DRM.

International Organization, specialized agency of the UN, headquarters in Geneva (CH) Mandate: to promote the protection of intellectual property rights worldwide Intellectual property : protects creations of the human mind, through patents, trademarks, copyright, industrial designs, and other rights181 Member States, representing over 90 % of the world’s countries

VII The Role of WIPO in Copyright. The Development Agenda (1)

The Role of WIPO in Copyright. The Development Agenda (2)

Main Tasks: Development of international IP law standards through global Conventions (2008: 24 Treaties administered by WIPO, 7 in the field of C &RR)Service to the private sector : Global protection systems & services through registration with the International Bureau, ex. PCT, Madrid Agreement and Protocol, Hague Agreement, and Services of the WIPO Arbitration and Mediation CentreAssistance to countries to further develop their IP systems

VII The Role of WIPO in Copyright. The Development Agenda (3)

I. Promotion of the 1996 WIPO Internet Treaties

II. Current Activities at the SCCR

III. Development Agenda

VII The Role of WIPO in Copyright. The Development Agenda (4)

III. Development Agenda commenced WIPO General Assembly 2004 – proposal submitted by

Brazil and Argentina and supported by a number of other countries

to mainstream the “development dimension” into all of WIPO’s substantive and technical assistance activities and processes

VII The Role of WIPO in Copyright. The Development Agenda (5)

III. Development Agenda 45 Recommendations adopted by WIPO General Assembly (10/07) (6 clusters),

A) Technical Assistance and Capacity BuildingB) Norm-Setting, Flexibilities, Public Policy and Public DomainC) Technology Transfer, Information and Communication Technologies and Access to KnowledgeD) Assessment, Evaluation and Impact StudiesE) Institutional Matters Including Mandate and Governance F) Others

Work proceeding under new Committee on IP and Development (CDIP), which will meet again in November 2010

VII The Role of WIPO in Copyright. The Development Agenda (6)

III. Development Agenda (3 projects on CR)IP and the Public Domain

- Scoping study on Copyright and Related Rights

and the Public Domain (just published)

- Second Survey of National Legislation on Voluntary

Registration Systems for Copyright and Related Rights

- Survey of Private Copyright Documentation Systems and Practices

VII The Role of WIPO in Copyright. The Development Agenda (7)

III. Development Agenda (3 projects on CR)IP, ICTs, THE DIGITAL DIVIDE AND ACCESS TO KNOWLEDGE - Research Project on Using Copyright to Promote Access to Information

and Creative Content

- Survey of public policies and strategies, including (but not limited to) IPR legislation, to develop and make content available

- Three Strategic areas: - education and research; - software development practices; - e-information services (including Public Sector Information

VII The Role of WIPO in Copyright. The Development Agenda (8)

III. Development Agenda (3 projects on CR)IP and Competition Law - Organization of a Global Meeting on Emerging Licensing Issues in

the Copyright Area (November 3-4, 2010)

- Describe and analyze different copyright licensing practices

- Examine compatibility between traditional copyright licenses and emerging ones.

Thank you

WIPO Culture and Creative Industries Sector http://www.wipo.int/copyright/en/