Intellectual Property

Rights
What is Intellectual Property

 Intellectual property is a term used to describe works of the mind—

such as art, books, films, formulas, inventions, music, and processes
—that are distinct and owned or created by a single person or group.
 Intellectual property is protected through copyright, patent, and trade
secret laws.
 Copyright, patent, and trade secret legislation form a complex body
of law that addresses the ownership of intellectual property.
 These laws can present potential ethical problems for IT companies
and users— HOW?
 Should the need for ongoing innovation or the rights of
property owners govern how intellectual property is used?
 Defining and controlling the appropriate level of access to intellectual
property are complex tasks.
 For example, protecting computer software has proven to be difficult
because it has not been well categorized under the law.
 Software has sometimes been treated as the expression of an idea,
which can be protected under copyright law.
 In other cases, software has been treated as a process for changing a
computer’s internal structure, making it eligible for protection under
patent law.
 At one time, software was even judged to be a series of mental steps,
making it inappropriate for ownership and ineligible for any form of
protection
COPYRIGHTS

 A copyright is the exclusive right to distribute, display, perform, or

reproduce an original work in copies or to prepare derivative works based
on the work.
 Copyright protection is granted to the creators of “original works of
authorship in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.”
 The author may grant this exclusive right to others.
 As new forms of expression develop, they can be awarded copyright
protection.
 For example, in the Copyright Act of 1976, audiovisual works were given
protection, and computer programs were assigned to the literary works
category
 Copyright infringement is a violation of the rights secured by the
owner of a copyright.
 Infringement occurs when someone copies a substantial and material
part of another’s copyrighted work without permission.
 The courts have a wide range of discretion in awarding damages—
from $200 for innocent infringement to $100,000 for willful
infringement
 Copyright law guarantees developers the rights to their works for a
certain amount of time
 For works created after January 1, 1978, copyright protection endures for
the life of the author plus 70 years.
 For works created but not published or registered before January 1, 1978,
the term endures for the life of the author plus 70 years, but in no case
expires earlier than December 31, 2004.
 For works created before 1978 that are still in their original or renewable
term of copyright, the total term was extended to 95 years from the date
the copyright was originally secured.
Eligible Works

 The types of work that can be copyrighted include architecture, art, audiovisual
works, choreography, drama, graphics, literature, motion pictures, music,
pantomimes, pictures, sculptures, sound recordings, and other intellectual works
 To be eligible for a copyright, a work must fall within one of the preceding
categories, and it must be original.
 Copyright law has proven to be extremely flexible in covering new technologies;
thus, software, video games, multimedia works, and Web pages can all be
protected.
 Evaluating the originality of a work is not always a straightforward process, and
disagreements over whether or not a work is original sometimes lead to litigation.
 For example, former Beatles member George Harrison was entangled for decades
in litigation over similarities between his hit “My Sweet Lord,” released in 1970, and
“He’s So Fine,” composed by Ronald Mack and recorded by the Chiffons in 1962
 Some works are not eligible for copyright protection, including those
that have not been fixed in a tangible form of expression and those
that consist entirely of common information that contains no original
authorship, such as a chart showing conversions between European
and American units of measure.
Fair Use Doctrine
 Copyright law tries to strike a balance between protecting an author’s
rights and enabling public access to copyrighted works.
 The fair use doctrine was developed over the years as courts worked
to maintain that balance.
 The fair use doctrine allows portions of copyrighted materials to be
used without permission under certain circumstances.
 Courts should consider the following four factors when deciding
whether a particular use of copyrighted property is fair and can be
allowed without penalty:
 The purpose and character of the use (such as commercial use or
nonprofit, educational purposes)
 The nature of the copyrighted work
 The portion of the copyrighted work used in relation to the work as a
whole
 The effect of the use on the value of the copyrighted work
 The concept that an idea cannot be copyrighted but the expression of
an idea can be is key to understanding copyright protection.
 An author cannot copy the exact words that someone else used to
describe his feelings during a skirmish with terrorists, but he can
convey the sense of horror that the other person expressed.
 There is no copyright infringement if two parties independently
develop a similar or even identical work
 If two writers happened to use the same phrase to describe a key
historical figure, neither would be guilty of infringement.
 Of course, independent creation can be extremely difficult to prove or
disprove.
 The HathiTrust Digital Library is a joint project involving major
research institutions, the libraries of several universities, and Google.
 The intent of the project was for Google to create a searchable
database of the holdings of the participants, along with tools to
facilitate access and searching of the database.
 In 2011, the Authors Guild, an advocacy group for writers, filed a
lawsuit alleging the project violated copyright law because the
process of creating and accessing the digital library involved the
unauthorized creation of multiple copies of the books.
 HathiTrust argued that its use of the material was “transformative”
and thus permissible under conditions of the fair use doctrine
 In this situation, a transformative act is one in which enough new
material is added to a work to change the nature of the work or to
modify the purpose for which the work is intended.
 The judge in the case reasoned that scanning and indexing the books
for the purpose of allowing readers to search the content was indeed
transformative and ruled in favor of HathiTrust.
Software Copyright Protection

 The use of copyrights to protect computer software raises many complicated

issues of interpretation.
 For example, a software manufacturer can observe the operation of a
competitor’s copyrighted program and then create a program that
accomplishes the same result and performs in the same manner.
 To prove infringement, the copyright holder must show a striking
resemblance between its software and the new software that could be
explained only by copying.
 However, if the new software’s manufacturer can establish that it developed
the program on its own, without any knowledge of the existing program,
there is no infringement.
 For example, two software manufacturers could conceivably develop
separate but nearly identical programs for a simple game such as tic-tac-toe
without infringing the other’s copyright.
 Tetris is a very popular computer game that was created in 1984.
 Over the years, multiple versions of the game have been developed
for different mediums.
 Xio Interactive was a small company formed for the purpose of
creating an unlicensed iPhone version of Tetris—named Mino.
 However, shortly after Xio posted its Mino app to the Apple iTunes
store, Tetris filed a copyright infringement lawsuit against the
company.
 In its defense, Xio argued that because it only copied the rules and
basic functionality of the game, and not its more original
components, there was no infringement.
 While the court agreed that the fundamental rules and basic
functionality of the game could not be protected, it pointed out that
many other elements of the game had been copied, including the
color, shape, and number of game bricks; how the pieces were
formed from the game bricks; and the manner in which the pieces
moved.
 In addition, the court noted that screen shots of the games viewed
side by side were nearly dentical. The court ruled that Xio was
permanently banned from selling, displaying, or promoting the Mino
game.
The Prioritizing Resources and Organization
for Intellectual Property (PRO-IP) Act of 2008

 The Prioritizing Resources and Organization for Intellectual Property

(PRO-IP) Act of 2008 increased trademark and copyright enforcement
and substantially increased penalties for infringement.
 The penalty for infringement of a 10-song album was raised from
$7,500 to $1.5 million
 CHIP (Computer Hacking and Intellectual Property), is a network of
over 150 experienced and specially trained federal prosecutors who
focus on computer and intellectual property crime.
The WTO and the WTO TRIPS
Agreement (1994)
 The World Trade Organization (WTO) is a global organization that deals
with rules of international trade based on WTO agreements that are
negotiated and signed by representatives of the world’s trading nations.
 Many nations recognize that intellectual property has become
increasingly important in world trade, yet the extent of protection and
enforcement of intellectual property rights varies around the world.
 As a result, the WTO developed the Agreement on Trade-Related Aspects
of Intellectual Property Rights, also known as the TRIPS Agreement, to
establish minimum levels of protection that each government must
provide to the intellectual property of all WTO members.
 This binding agreement requires member governments to ensure that
intellectual property rights can be enforced under their laws and that
penalties for infringement are tough enough to deter further violations
Copyright, patent, and trade secret
protection under the TRIPS
Agreement.
Copyright Laws in Pakistan

 In Pakistan, copyright protection is governed by the provisions of the

Copyright Ordinance, 1962 ("the Ordinance") which is modelled on the
English Act of 1914. Pakistan is a member of Berne Copyright Union and the
Universal Copyright Convention.
 In Pakistan, computer programmes are excluded from patent protection
under the patent laws. Protection under the copyright laws is the only
safeguard available for the computer software industry.
 As regard to the computer programmes, the definition of `literary work' is
amended by the Copyright (Amendment) Act, 1992 ("the Amendment Act")
to include computer programmes. Section 2(p) of the Ordinance defines
literary work to include work, inter alia, on complications and computer
programmes, "that is to say programmes recorded on any disc, tape, media
or other information storage devices, which, if fed into or located in a
computer or computer based equipment is capable of reproducing any
information".
PATENTS

 A patent is a grant of a property right issued by the government to an

inventor.
 A patent permits its owner to exclude the public from making, using,
or selling a protected invention, and it allows for legal action against
violators.
 Unlike a copyright, a patent prevents independent creation as well as
copying.
 Even if someone else invents the same item independently and with
no prior knowledge of the patent holder’s invention, the second
inventor is excluded from using the patented device without
permission of the original patent holder
 IBM obtained 6,478 patents in 2012, the 20th consecutive year it
received more patents than any other company in the United States.
 By some estimates, IBM’s licensing of patents and technologies
generates several hundred million dollars in annual revenue for the
company.
 To obtain a patent, you need to file an application with the United
States Patent and Trademark Office (USPTO) or your government
agency that issues patents.
 As part of the application, the USPTO searches the prior art—the existing body of
knowledge available to a person of ordinary skill in the art—starting with patents
and published material that have already been issued in the same area.
 The USPTO will not issue a patent for an invention whose professed
improvements are already present in the prior art.
 Although the USPTO employs 7,800 patent examiners to research the originality
of each patent application, the average time from filing until the application is
issued as a patent or abandoned by the applicant is around 31 months
 At the end of 2012, there was a backlog of 597,579 unexamined patent
applications.
 Such delays in getting patents approved can be costly for companies that want
to bring patented products to market quickly.
 As a result, in many cases, people trained in the patent process, rather than the
inventors themselves, prepare patent applications
 The U.S. Supreme Court has ruled that three classes of items cannot
be patented: abstract ideas, laws of nature, and natural phenomena.
 Standing on its own, mathematical subject matter is also not entitled
to patent protection
 Initially, the statute did not identify computer software, gene
sequences, or genetically modified bacteria as patentable subject
matter.
 Now in 2023, these items have subsequently been determined to be
patentable.
 Patent infringement, or the violation of the rights secured by the
owner of a patent, occurs when someone makes unauthorized use of
another’s patent.
 Unlike copyright infringement, there is no specified limit to the
monetary penalty if patent infringement is found.
 If a court determines that the infringement is intentional, it can award
up to three times the amount of the damages claimed by the patent
holder
Software Patents

 A software patent claims as its invention some feature or process

embodied in instructions executed by a computer.
 The courts and the USPTO have changed their attitudes and opinions on
the patenting of software over the years.
 Prior to 1981, the courts regularly turned down requests for such
patents, giving the impression that software could not be patented.
 During the 1980s and 1990s, the USPTO granted thousands of software-
related patents per year.
 Starting in the latter half of the 2000s, the courts have become more
restrictive on the granting of software patents.
 Some software experts think that too many software patents are being
granted, and they believe that this inhibits new software development.
 During 2012, the following software patent battles were raging among some of
the biggest names in the software industry:
 Oracle and Google battled over patent infringement claims associated with Oracle’s
Java programming language—with Oracle seeking $6 billion in damages.
 Apple sued Samsung for patent infringement regarding several patents associated
with Apple’s smartphone and tablet devices. Apple was ultimately awarded $1.1
billion in damages.
 Mformation, a global provider of mobile device management technology, was
awarded $147 million when it sued Research in Motion for patent infringement of
Mformation’s patented technology, which enables companies to remotely access
employee mobile phones to perform software upgrades, change passwords, and
erase data.
 Many industry observers believe that Google purchased Motorola Mobility, a
smartphone software company, for $12.5 billion so that the firm could sue Apple over
alleged infringement of patents associated with location reminders, email
notification, and the Siri intelligent assistan