IP notes

Home Teaching Glossary ARM Processors Supplements Prof issues About

Intellectual Property

Several years ago I was asked to give a lecture on intellectual property to our freshmen because of my interest in writing and publishing. These notes have been digested from the presentation I gave at this lecture. These notes are intended to provide a little background to IP since many students are only vaguely aware of the topic.

This material is neither definitive nor authoritative!

This lecture looks at the nature of intellectual property and the various forms of protection afforded to intellectual property (e.g., patents).

In particular, we introduce the problems of intellectual property in the information age. Today, the Internet allows unlimited copying and distribution of books, images, music and software.

Property Rights

Before looking at intellectual property, let’s look at where property rights come from. Herman Tavani (in Ethics and Technology) states that there are three philosophical basis for the concept of property.

Theory 1: Labor

Labor Property is a natural right that is justified in terms of the labor invested in creating property.

Theory 2: Utilitarian

Property is not a natural right, but an artificial right created by the state. Property rights are granted by the state because they result in greater overall benefit to society.

Theory 3: Personal

Property is a moral right and is justified because a creative work expresses the personality of its creator.

There are two types of property:

Physical property – land, money, houses, clothes, food.
Intellectual property – ideas (expressed as designs, music, art, writing, dance, software). Intellectual property is intangible.

Difference between physical and intellectual property

Physical property is expensive to create and to reproduce; for example, houses, automobiles, jewelry.
Intellectual property may take a lot of effort to create (e.g., a book) but is easy to reproduce at minimal cost.
Historically, societies have attempted to protect intellectual property by giving designers special privileges.

Types of Intellectual Property

Patent

Protects inventions

Trademark

Protects traders: those who sell products

Trade secret

A trade secret is a critical piece of information that an organization wishes to keep secret

Protects writers and artists

Patents

Patents grant an inventor the right to exclude others from producing or using his or her discovery for a limited period of time.

Society grants a patent in return for the inventor revealing (“teaching”) details of the invention.

The invention must satisfy three criteria:

usefulness
novelty
non-obviousness

A patent is granted to someone who can demonstrate that their invention would not be obvious to someone “ordinarily skilled in the art” (non-obviousness)

After 20 years, a patent expires and anyone can freely exploit the invention.

After 20 years a patented drug can be made by any manufacturer and becomes known as a generic drug.

The First Patents

From the UK patent office website: Britain has a very long patent tradition in the world. Its origins can be traced back to the 15th century, when the Crown started making specific grants of privilege to manufacturers and traders. Patents were signified by Letters Patent, open letters marked with the King's Great Seal.

The earliest known English patent for invention was granted by Henry VI to Flemish-born John of Utynam in 1449. The patent gave John a 20-year monopoly for a method of making stained glass, required for the windows of Eton College.

Trademark

A trademark is a distinctive symbol that traders use to identify their products.

Two of the most famous trademarks in the world are the Coca-Cola and McDonald symbols.

A trademark is very valuable to a manufacturer because it is a shorthand for their products and their assumed reliability and quality.

The nature of a trademark may vary; it may be a symbol, word or picture. Trademarks may even extend to distinctive styles and color in packaging.

AOL attempted to trademark the expression “You’ve got mail” and failed.

Trade Secret

A trade secret is a piece of information that provides an organization with a competitive advantage over other companies; for example, formulae, plans, manufacturing processes.

A good example is the formula for Cola Cola.

A company’s projected sales figures may constitute a trade secret because that information is valuable to a competitor.

It is illegal to reveal a trade secret.

Trade Secrets – Different from Patents

A trade secret does not have a finite lifetime like a patent. A trade secret may be ‘forever’.

A trade secret may be circumvented by independent research carried out by a competitor.

Non-disclosure Agreement

A non-disclosure agreement, NDA, is commonly used to protect a trade secret when one of the parties is not part of the company owning the trade secret.

For example, an author may be provided with details about a company’s future product because the book will appear at the same time as the product hits the market. The author will be asked to sign an NDA to ensure that details of the product (trade secret) will not be prematurely disclosed.

Copyright originally applied to the written word and was designed to protect the copyright owner by giving him or her “the exclusive right to reproduce, distribute, perform, display, or license their work”. Copyright lasts for the lifetime of the owner plus 50 years (70 years in the UK but 50 for sound recordings and broadcasts). Note – the fine details of copyright duration are rather more complex.

Literary works
Computer software
Musical work
Sound recordings
Drama
Motion pictures
Visual works: statues, paintings, graphic works
Choreographic works

Exclusions (not copyrightable):

Non-tangible works
Ideas
Facts
Names, slogans, formulae, equations

Until the arrival of digital technology in the 1960s and its expansion into the domestic world in the 1990s, most electronic technologies were analog. That is, signals could have an infinite number of values within a range.

Analog signals are difficult to process faithfully and to store. Successive copying degrades analog signals.

Digital signals have fixed values and can be copied and stored an infinite number of times with no loss of quality.

The unauthorized copying of analog signals posed a modest threat to copyright owners because copies-of-copies-of-copies… degrade rapidly. The ability to copy digital material perfectly means that a copy is as good as an original.

Copyright is a system designed to protect those who create original works.
Plagiarism is the act of passing off the work of others as your own. In the academic world, plagiarism is regarded as the number one sin.
You can commit plagiarism without breaking copyright (e.g., copying something that is in the public domain).
You can infringe copyright without committing plagiarism (e.g., you can acknowledge the work you copy as belonging to someone else but that does not give you the right to do it).

History of Copyright

1557 Queen Mary I gives control of all printing and bookselling to a single guild, the Stationer's Company.

1662 The Licensing Act establishes a register of licensed books.

1710 The first copyright law grants exclusive rights to authors, rather than publishers. Rights were limited to 28 years before they passed into the public domain .

1787 the US Constitution states "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

1886 The Berne Convention provides a scheme to allow the mutual recognition of copyright between nations. This provides a universal law and removed the need for separate registration in every country. The United States became a Berne signatory in 1988.

1928 The Rome Act recognizes the moral rights of authors and artists, giving them the right to object to modifications of a work in a way that might prejudice or decrease the artists' reputations.

1990 The Circulation of Computer Software Act (USA) prohibits commercial lending of computer software by libraries etc.

1996 the World Intellectual Property Organization (WIPO) allows the fair use of material in a digital environment and provides a balance between the rights of authors and education and research.

1998 The Digital Millennium Copyright Act launched in the USA. This implemented the WIPO Internet Treaties and permitted temporary copies of programs during computer maintenance.

DMCA "prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner …”.

Here’s an extract from the first copyright act.

Annæ Reginæ.

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times thereinmentioned.

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families

For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons in this present Parliament Assembled, and by the Authority of the same, That from and after the Tenth Day of April, One thousand seven hundred and ten, the Author of any Book or Books already Printed, who hath not Transferred to any other the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the same, shall have the sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years….

Society suffers if people are denied access to material that they need for research or education.

Fair use has been defined to allow people to bypass the copyright law under certain circumstances; for example, criticism, comment, news reporting, teaching, scholarship and research.

Whether copying is fair use depends on:

the purpose of the use – for commercial or nonprofit educational purposes;
the nature of the copyrighted work;
the amount of material copied in relation to the work as a whole.

The notion of fair use is poorly defined and individual cases can be challenged in court.

Myths about Copyright

If I give it away, I’m not infringing copyright
Putting it on the web is fair use
If I modify someone’s article slightly, I’m ok
I’m really doing them a favor by giving them free advertising

My friend has a program. Why shouldn’t I copy it? It will save me a lot of money and no one will suffer; it’s a victimless crime.

It is true that no one is worse off following the copying of a program. But the situation is rather more complex.

Cost of Copying

A company exists to make a profit for its shareholders.
A company invests in the creation of a new product. It is expected that the product will sell and generate more income than it costs to manufacturer.
If the product is copied (pirated) the company may not generate the expected income. Indeed, the company may make a loss and go out of business.
The dangers of copying may force a company to drop out of a specific market and society loses by not getting new products that might have been valuable.

Consequence of Copying

Companies claim they loose a lot of money because people copy their books, software, music, CDs, DVDs etc.
Suppose 100 students copy a piece of sophisticated software costing $500 per copy. The company will argue that they have lost $50,000. Such large sums of money make it worthwhile for companies to prosecute copyright violators.
Although companies lose less per music CD than per software package, CDs are sold by the million and the lost revenue can be vast. Some companies sue individuals who copy music as a means of frightening others.
Apart from being unethical and illegal, unauthorized copying can lead to a fine and, more importantly for a professional, a criminal record.
Peer-to-peer file sharing (Napster) has made it easy to copy software on an immense scale.
A Comment from the Internet
“The greatest reward musicians should have is their own music and nothing else. … Alfie Kohn reports on a psychological study showing that creativity diminishes if it's done for gain. He writes: ‘If a reward - money, awards, praise, or winning a contest - comes to be seen as the reason one is engaging in an activity, that activity will be viewed as less enjoyable in its own right’.
… It follows then that the best music I've heard … is from artists, who are struggling to make ends meet working two jobs, who are doing their music with an inherent passion and a desire to share it with people, and not because they have a contract ...”

Self-copying and Competition

An interesting aspect of copying is demonstrated by self-copying where a company copies and freely distributes its own product.
Consider Internet Explorer. Microsoft copies it and gives it free with Windows (this is called bundling).
The effect of this self-copying is to make it difficult for competitors to compete with a product that is being given away.
Self-copying locks out competitors and stifles innovation.
Such practices may be illegal because they break laws designed to prevent anti-competitive practices.

Arguments for not having Copyright/IP

IP adversely affects the poor, disadvantaged, developing world etc.

Not all can afford to access IP that is protected and, therefore, their development or progress is curtailed.

IP restricts progress and development because the free flow of information is restricted.

IP is strongly supported by the mass media because they gain most from restricting the flow of information (they have an effective monopoly).

Laws designed to protect physical property should not be extended to intellectual property.

You can have only one copy of a specific house or car and its owner can suffer from its loss.
You can have multiple copies of a painting and the owner does not suffer its loss if someone else looks at the painting.
Society gains by the free exchange of idea, artwork, films, books etc.

Patent law can be used to stifle invention and progress.

If an energy-efficient automobile engine were invented, the patent could be bought by gasoline companies to prevent its introduction and consequent effect on their profits.

Patent law can be used to steal information from traditional societies.

Knowledge developed over hundreds of years in developing countries can be patented and the fruits of this knowledge denied the very people who originated it.

A government involved in a war was later embarrassed when official documentation was released. This documentation was used in a book revealing the government’s complicity. The government claimed copyright on the documents to prevent their publication.

Patent law can be applied to areas unforeseen by those who wrote the law

Genetic patents

Ethics and Professional Organizations

British Computer Society Code of Ethics is clearly incompatible with activities that breach the laws concerning IP.

Members shall have due regard to the legitimate rights of third parties.
Members shall ensure that within their chosen fields they have knowledge and understanding of relevant legislation, regulations and standards and that they comply with such requirements.
Members shall uphold the reputation of the Profession and shall seek to improve professional standard… and shall avoid any action which will adversely affect the good standing of the Profession.
Members shall act with integrity towards fellow members and to members of other professions with whom they are concerned in a professional capacity and shall avoid engaging in any activity which is incompatible with professional status.

Continue IP article