Intellectual property law

1. Intellectual property law

Module Two

2.1 Introduction

An important aspect of the Information and Communication Technology (ICT) industry is intellectual property (IP) legislation. Safeguarding the inventions, discoveries, and breakthroughs that drive the sector forward is becoming more and more crucial as technology advances. Trade secrets, copyrights, trademarks, patents, and other legal protections are all included in the umbrella of intellectual property law. These legislative structures support equitable competition, encourage innovation, and offer financial incentives.

2.2 Intellectual property law

The term "Intellectual Property" is a broad classification. Intellectual property laws protect ideas, inventions, literary works, distinctive names, business concepts, industrial processes, computer program codes, and others such as Brands, Service symbols, Trade or business names, Names of domains, geographical indications, Copyright (statutory grant) and Patents (legal) all falls under the Intellectual property laws as illustrated in figure 1. Similarly, Intellectual property is protection of product/individual protected by law (intangible creations).

Figure 1: Examples of Intellectual Property trademarks.

2.3 Intellectual Property Protection

There are four types of Intellectual Property protection. They are patents for invention, trademarks for brand identity, designs for product appearance and copyright for material.

2.3.1 PATENTS

Are document granting owner exclusive monopoly on an invention. During a given time (often 20 years), patents grant inventors have exclusive right to make, use, and sell their ideas without the need for authorization. Software algorithms, hardware designs, and communication protocols are only a few examples of the technological innovations that require patent protection. An illustration would be a patent for a novel data- compression algorithm applied to communications.

Patent law generally deals with new inventions, such as a new form of computer hardware or a new process for manufacturing integrated circuits. To protect an innovation with a patent, a formal application must be filed with the relevant patent office, which is an expensive and time-consuming process. If granted, the patent can be extended for up to 20 years. Potential patentees have three options: a UK patent, a European Patent Convention (EPC) patent that applies to three or more of the Convention's Member States, or a Patent Co-operation Treaty (PCT) patent that designates some or all of the nations covered by the treaty.

Selecting the nation in which to seek refuge is undoubtedly crucial and necessitates careful preparation and scheduling. One restriction is that a UK person may not, in certain situations, file an application outside the country for an innovation pertaining to military technology or if public safety or national security would be jeopardized by its disclosure. An invention must be original, contain an innovative step, have industrial applicability, and not be excluded in order to be eligible for patent protection. A new computer program cannot often be secured by a patent since the majority of items that are specifically protected by copyright law, such as literary works, are not eligible to be patented. The same holds true for corporate practices.

Although there are safeguards against the exploitation of patents and other intellectual property rights under US, UK, and European Community law, patents remain the gold standard of intellectual property rights and give the closest thing to an absolute monopoly. If software inventions improved the state of the art in a technical field in a non-obvious way, a proposed Directive might have made it easier to patent them. Certain nations, like the US, don't have any particular limitations on software invention patents. The European Parliament, however, rejected the draft Directive by a sizable majority, meaning that the status quo in Europe is likely to persist for some time.

2.3.2 COPYRIGHT

Exclusive rights to reproduce, distribute, and display a work are granted to the inventor of a copyright, protecting original works of authorship such as software code, multimedia content, and documentation. Software, websites, digital content, and other creative digital works must all be protected by copyrights. In otherwards, Copyright refers to the ownership of the whole right to decide how and to what extent one's original intellectual work may be used. Since the original work is shielded by copyright, it cannot be taken or duplicated without the owner's consent. According to Fishman (2008), "copyright is a legal tool that gives the owner of an invention or art, or any other work that conveys ideas or information the right to control how the content is used." By providing an economic incentive for authors to develop innovative works, copyright is intended to further the advancement of knowledge (Loren, 2000).

The owner of a copyright has the sole authority to create derivative works from the original work or reproduce it and disseminate it publicly. For example, you have the right to license your work so that others can use it and gain payment if someone wants to turn it into a play. A copyright secures the expression in a material form, such as musical compositions, plays, novels, or stories, but it does not shield concepts or work titles. The copyright symbol © is frequently used to indicate that the original work is protected by copyright. For instance: © T. Genne 2007. As an example, consider copyright protection for the graphics and text of a website or software program.

1. Acquiring Copyright

As soon as you create the expression in a tangible format, you are protected by copyright.
Copyright doesn't require any papers and is automatic. Works that are subject to copyright. Copyright can be applied to tangible, original expressions, but not to verbal presentations that are not documented or recorded. The United States Copyright Office (2008) states that in order for something to be protected by a copyright, it must meet three basic requirements:

Ö Fixation: Something has to be done to fix the item. You can write something down, upload it online, store it on a computer, phone, audio or video device, or any combination of these.

Ö Originality: The composition has to be unique. A novel or a student's email to a professor can both be examples of originality. Both are regarded as instances of creative expression.

Ö Limited to No Originality: The piece should contain something that goes above and beyond the original. It would be considered original to discuss an inventive idea with a reference to the original work.

2. Copyright protection

Authors have a good deal of control over their work thanks to copyright, which also guards against misuse. The following four fundamental rights are safeguarded by copyright:

a. to replicate the source material.

b. to distribute or sell the work's copies.

c. to create new pieces based on the works that are protected.

d. to make the protected work publicly available.

3. Copyright Restrictions

The following categories of works are not protected by copyright:
i. Works that are in the public domain contain intangible concepts and facts.
ii. Additionally, brief phrases, names, slogans, and words cannot be protected by copyright.
iii. government projects, such as: opinions of the judiciary; laws made by the public; administrative decisions are not protected by copyright; and works produced as part of their official duties by federal government workers.

Copyright has several restrictions even though it gives the original work the greatest protection possible. Of them, Fair Use has the biggest impact on the rights of copyright holders because there are no established rules for it. The copyright law does, however, have some exclusions and restrictions. For example, persons may use copyrighted content for teaching, research, news reporting, and criticism. In Information Technology field, copyright law states that: software developers (or the organizations they work for) own their programs; software buyers only own their right to use the software according to the license agreement; no copying, reselling, lending, renting, leasing or distributing is legal without the software owner’s permission.

4. A Guide to Copyright Protection

1. Make sure the marking on your work is accurate; even if it's not necessary, you should post a copyright notice to demonstrate that you respect intellectual property rights and take infringement seriously.

2. Sign up for your work; in order to be able to produce credible evidence in the event that your work is violated by copyright, you should register it.

3. Save or record any supporting documentation; provide evidence to back up your claim that you are the original author of the content. It fits into two groups:

· Idea evolution: This shows how the work has developed and can be seen in early texts, summaries, rough recordings, sketches, etc.

· Watermarks or footprints: These are typically used as proof that has been added to final documents.

5. Infringement or Violation of Copyright

When someone uses significant sections of a work without permission and without making fair use of them, or copies a work protected by copyright and passes it off as their own, that is considered copyright infringement. You must demonstrate both the work's ownership and its eligibility for copyright protection in order to establish a copyright violation. This indicates that the necessary degree of uniqueness is present in your work. The validity of the copyright is demonstrated if you register and receive your certificate of copyright within five years after producing the work. Demonstrating that your work has been copied is the second requirement. When a creation becomes accessible for use with no permission from an owner of copyright, it is referred to as "in the public domain," which happens when the copyrights they own expired.

2.3.3 TRADE MARKS

Trademarks are well-known to all, and the computer industry is full of examples of them. Some examples include the Apple logo, the phrases "Microsoft," "Windows," and "Adobe Acrobat," as well as the Dell monogram. Trade marks can take the shape of a word (often stylized), a symbol, or both. The Trade Marks Act of 1994 allows for registration. It is possible to register a trademark for products or services. A mark must have distinctiveness and the ability to be graphically depicted in order to be registered as a trade mark.

For a mark to be considered distinctive, it must be able to tell one undertaking's products or services apart from those of other undertakings. (Today, a trader is referred to as "undertaking.") Stated differently, trademarks have to serve as "badges of origin," signifying the source of the products or services for which they have been applied or utilized. Trademarks are crucial because they are linked to popular products, and consumers frequently use the mark to place orders for goods or services. Brands like "Hoover" and "Hovis" are a few of instances of names that have grown to be strongly linked to the products in question.

Trademarks, however, run the risk of being withdrawn if its use as a generic name, or common name, for goods or services results from the owner's actions or inaction. Trade mark law safeguards a company's goodwill and reputation, which also serves to shield consumers from dishonest business activities. Certain items and services are eligible for trademark registration. There is a system of classification with 11 classes for services and 34 classes for commodities. Computers and data processing are under Class 9, whereas the creation of computer hardware and software is under Class 42. Information technology may also benefit from taking other classes, such as Class 35, which covers office work, business administration, company management, and advertising. As long as they are distinguishable, registering graphic symbols—including moving images—displayed on computer displays and similar devices is not particularly challenging. Sounds and colors can also be registered as trademarks, albeit it can be challenging to register only one color.

2.3.4 TRADE SECRETS

A type of intellectual property known as trade secrets consists of proprietary business knowledge that gives an advantage over competitors. Unlike patents, copyrights, or trademarks, trade secrets are not registered with any government agency; instead, they are safeguarded by confidentiality agreements and proprietary business practices.

A trade secret is any procedure, design, structure, technique, or compilation of information not commonly known or reliably identifiable, by which a brand can get an economic beneficial over competitors or buyers. Confidentiality of the information is required. A competitive advantage must be provided by the information. The information must be kept confidential by the possessor using reasonable methods. A well-known example is the recipe for Coca-Cola, manufacturing procedures, such as those utilized in the fabrication of Intel chips, customer lists, the organization plans, and approaches to marketing and the search algorithm used by Google.

A key component of intellectual property law is trade secrets, which provide companies with an informal means of safeguarding sensitive data without requiring official registration. Although they have many benefits, such as possibly endless protection, they also necessitate careful attention to maintaining confidentiality and guarding against theft. Maintaining a competitive edge in a world where competition is fierce and technology is pervasive requires a grasp of and skill in handling trade secrets.

2.3.5 DESIGN-RELATED LAW

The intricate statutory requirements pertaining to rights in innovative designs have undergone significant growth and modification. In essence, registered designs and unregistered design rights are the two categories of rights recognized by UK law. The former is available for designs that are fresh and possess a unique personality, while the latter is determined by the overall impression that the design leaves on a knowledgeable user. The look of a product, in whole or in part, resulting from its features—specifically, its lines, contours, colors, shape, texture, materials, or ornamentation—is referred to as a "design" for registered designs.

"Design" refers to "any aspect of the shape or configuration (whether external or internal) of the whole or part of an article" for designs that are covered by the design right. The complexity of this field of law is increased by the difficulty in distinguishing between the various rights because there is a great deal of overlap with copyright law and the rights inter se. Different rights have varied durations: registered designs have a maximum of 25 years, while design rights have a maximum of 15 years (with a 10-year commercial exploitation cap). Licenses of right are offered during the final five years of the design right. This implies that a license to reproduce the design may be obtained by anyone. The terms of the license shall be determined by the Comptroller of Patents, Designs, and Trademarks (the head of the Patent Office), in the event that no agreement is reached.

These two types of design rights may be applicable to products like newly designed computer mice or laptop computers, keyboards, or printers.

As we shall see, the producers of spare parts are also affected by design rights and their exceptions, since their designs are governed by the shape of the piece that the spare part is meant to fit or match. Both the registered design system and, to some extent, the unregistered design right are significant, particularly when it comes to the design of computer hardware. Nonetheless, the latter is especially significant when it comes to semiconductor product design, since a portion of that right safeguards the topography or arrangement of those items. Part III of the Copyright, Designs and Patents Act 1988 and the Registered Designs Act 1949 (as modified) are the relevant statutes. On December 9, 2001, the most important recent modification was made in order to implement a Directive on the legal protection of designs. The UK law on registered designs was significantly altered as a result. Typefaces and graphic symbols, such as computer icons and other images, may now be registered as designs as a result of these modifications. All these intellectual property protections are summarized in table 1.

Table 1: Summary of the different Intellectual Property Protection

Right	Types of works protected	Examples with respect to computers	Duration
Patent	New inventions such as items and industrial processes.	New type of printer or computer, new way of manufacturing integrated circuits, industrial process controlled by software	Renewable for a maximum of 20 years.
Copyright	Original literary, dramatic, musical, or creative works; • Sound recordings, films, or broadcasts; and • Typographic layout of published editions. (Computer programs, pre-design material for computer programs, and databases are literary works)	Computer programs and preliminary design materials. Databases and other sorts of work created or developed by a computer, such as a computer-generated weather forecast linked to weather satellites, computer-aided design, or music. Almost any work in digital form.	For original works and films, 70 years are typically calculated from the end of the calendar year in which the author dies. For the majority of the other works, the period is 50 years after a specific occurrence
Trade secrets	Protect valuable, confidential information without the need for formal registration.	manufacturing procedures, such as those utilized in the fabrication of Intel chips, customer lists, the organization plans, and approaches to marketing and the search algorithm used by Google.	Trade secrets are protected for as long as they meet certain requirements, including secrecy, economic worth, and reasonable measures to maintain confidentiality. Particularly in the context of employment and partnerships, NDAs and other legal agreements might define the length of confidentiality requirements.
Registered trade marks	Any indicator that may be expressed graphically and is capable of differentiating goods or services of one undertaking from those of others	Apple logo, ‘Microsoft’, ‘Dell’, ‘Oracle’, ‘Netscape’ ‘Adobe Acrobat’.	First for 10 years, and then renewable in increments of 10 years indefinitely
Registered design	Distinctive designs with distinct traits as seen by a knowledgeable spectator	a product's overall or selective act that is determined by its characteristics, specifically its lines, colors, contours, materials, shape, texture, or ornamentation: for instance, a laptop, computer accessories, computer icons, peripherals, mouse and computer fonts,	5 years at first, renewable every 5 years for a maximum of twenty-five years.

2.4 KEY ISSUES IN INTELLECTUAL PROPERTY LAW IN ICT

1. Software Patents: Software patentability has been a controversial topic, with arguments being made for and against software being regarded as an invention or just an abstract concept. Patents on software can promote innovation, but they can also result in lawsuits and patent trolling, which can hinder smaller developers.

2. Digital Rights Management (DRM): DRM methods regulate application, modification, and distribution of copyrighted digital content. However, the ICT industry continues to face considerable challenges in reconciling digital content protection with user rights and fair usage.

3. Open-Source Software: Open-source software is made available to users under licenses that permit unrestricted modification and sharing. It might be difficult to secure private innovations while maintaining compliance with open-source licensing.

4. International IP Protection: Since technological companies operate worldwide, international intellectual property protection is essential. Despite considerable legal and cultural differences, efforts to unify IP laws across jurisdictions attempt to simplify protection and enforcement.

2.5 LEGAL FRAMEWORKS AND AGREEMENTS

1. World Intellectual Property Organization (WIPO): WIPO is a global platform for intellectual property services, policy, information, and cooperation. WIPO oversees globally binding agreements like the Patent Cooperation Treaty (PCT) and the Berne Convention on the Protection of Literary and Artistic Works.

2. Trade-Related Aspects of Intellectual Property Rights (TRIPS): TRIPS is an international legal agreement between all WTO members that establishes baseline requirements for intellectual property protection. TRIPS seeks to standardize IP laws and establish a framework for resolving IP disputes among member countries.

3. National Laws: IP laws differ greatly among nations, influencing how ICT companies maintain and defend their IP rights. The Digital Millennium Copyright Act (DMCA) in the United States and the General Data Protection Regulation (GDPR) in the European Union both have measures addressing intellectual property in ICT.