Intellectual property

Morgan.Magnin@irccyn.ec-nantes.frhttp://www.irccyn.ec-nantes.fr/~magnin/http://www.twitter.com/morgan_it/

Office E214

Why a course about legal issues related to C.S.?

Some issues

• What is public domain?

• What differences between copyright, trademark, registered trademark?

• Do you know that the use of ® for an unregistered trademark is a criminal offense in some countries?

• How multimedia/numerical creations are protected against piracy?

• What laws do you have to respect to process personal data?

• How software licenses may restrict the end-user rights?

Course objective

• Originality of the course: to give an overview of the worldwide legislation

• Focus on:

• Author’s rights

• Licenses

• Information processing

• e-business regulations

Digital rights

Digital rights

Permissions of individuals to perform actions involving the use of a computer, any electronic device, or a communications network

Fields of digital rights

Human rights and the Internet

• Freedom of expression

• Data protection

• Privacy

• Freedom of association

• Right to education and multilingualism

• Consumer rights

Digital rights: outcomes

• Internet access for all

• Freedom of expression and association

• Access to knowledge, shared learning and creation

• Free and open source software and technology development

• Privacy, surveillance and encryption

• Governance of the internet

• Awareness, protection and realization of rights

Intellectual property

• Patent

• Trademark

• Copyright

• Neighbouring rights

Patent

• Exclusive rights granted by a state to an inventor for a limited period of time in exchange for a public disclosure of an invention.

• Territorial in nature (depends on patent offices)

• Right to exclude others from making, using, selling, or distributing the patented invention without permission

• Term of the patent: usually 20 years from the filing date subject to the payment of maintenance fees

• Property right that may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.

Patent

Patent

• Applying for a patent requires that the invention is:

• New

• Inventive

• Useful or industrially applicable

• Some fundamental differences between countries according to national laws and international agreements

• Some subject areas excluded from patents in many countries, e.g. business methods and mental acts

Patent

• Note a patent does not necessarily give the owner of the patent the right to exploit the patent.

• Example: inventions which are improvements of prior inventions that may still be covered by someone else's patent.

Ownership of a patent

• In the United States:

• Only the inventor(s) may apply for a patent although it may be assigned to a corporate entity subsequently

• Inventors may be required to assign inventions to their employers under a contract of employment.

Ownership of a patent

• In Europe: ownership may pass from the inventor to their employer by rule of law if:

• invention made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties,

• or if the inventor had a special obligation to further the interests of the employer's company

Applying for a patent

• Fill a written application at the relevant patent office:

• Description of how to make and use the invention

• Provide sufficient details for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention

• Drawings

• In some countries, some additional information are required: usefulness of the invention, best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention.

Applying for a patent

• Patent pending process

• Renewal fees to keep the patent in force

Software patent

• Intense debate

• What is a software patent?

"Patent on any performance of a computer realised by means of a computer program"

Software patent

• In the U.S.:

• Software patents have been granted since the early 1970s

• In Europe:

• "Programs for computers" are excluded from patentability (European Patent Convention, art.52)

• But:

• Is patentable: any invention which makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if that technical problem is solved by running a computer program

Software patent

• In Japan:

• Software-related inventions are patentable

• But the invention must be "a creation of technical ideas utilizing a law of nature"

• Thus you must "concretely realize the information processing performed by the software by using hardware resources"

• Software is patentable in: South Korea

• Software is unpatentable in: India, the Phippines

Issues related to software patent

• Aim of patents: to promote innovation

• By requiring a prompt and full disclosure by an inventor of how to make and use the invention

• By granting the inventor a monopoly right for a limited period of time to a patent owner to prevent others from making, using or selling the invention in exchange

Issues related to software patent

• Obviousness (trivial inventions)

• Compatibilty (e.g. GIF patent problem)

• Overlap with copyright

• Free software

Trademark

Trademark

• Distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source

• Object of intellectual property that applies to goods or services

• Territorial

• Could be: a name, word, phrase, logo, symbol, design, image, or a combination of these elements

Trademark

• U.S. Symbols:

• ™ : for an unregistered trade mark, that is, a mark used to promote or brand goods

• ℠ : for an unregistered service mark, that is, a mark used to promote or brand services

• ® : for a registered trademark at the U.S. Patent and Trademark Office

• In France: no value is granted to these symbols

Trademark

• Not necessary to get a registered trademark to file suit in case of unauthorized use

• But an unregistered trademark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand

• The mark needs to be used to be effectively protected (but intention to use may be valid).

• Some long used trademarks:

• Löwenbräu (since 1383)

• Stella Artois (since 1366)

Aims of trademark

• Identify the commercial source or origin of products or services

• Trademark rights generally arise out of the use

Registration of trademark

• Actual use in the marketplace

• Or registration of the mark with the trademarks office of a particular jurisdiction

• Be aware that certain jurisdictions do not recognize trademarks rights arising through use

• Trademark rights will cease if a mark is not actively used for a period of time (normally 5 years in most jurisdictions)

Registration of trademark

• Registered trademark benefit from extended exclusive rights:

• To prevent unauthorized use of the mark in relation to products which are identical or "colourfully" similar to the "registered" products

• Can a consumer of the goods or services be confused as to the identity of the source or origin? (ex: a pair of sunglasses sold by a "Sony" company)

• Lost trademark:

• Failure to use a trademark for a period of time

• If a court rules that a trademark has become "generic" through common use (Google's fear)

Search for existing trademarks

• U.S.: U.S. Patent and Trademark Office (USPTO)

• Europe: Office of Harmonization for the Internal Market (OHIM)

• National Offices

Copyright

Copyright

• Exclusive rights granted to the author or creator of an original work

• Include the right to copy, distribute and adapt the work

• Aim: protect the fixed expression or manifestation of an idea rather than the fundamental idea itself

• Can be licensed, transferred and/or assigned

• Internationally standardized

Copyright

• Lasts for a certain time period (and then: public domain)

• Lasting between fifty and one hundred years from the author's death, or a shorter period for anonymous or corporate authorship

• Some jurisdictions also recognize "moral rights" of the creator of a work

• Example: the right to be credited for the work

• Origin of copyright: 1709

Exclusive rights granted by copyright

• Initially: granted the exclusive right to copy a book

• Have been gradually expanded over time: now applies to work such as dramatization, translations, and derivative works such as adaptations and transformations

• Extensions:

• In the 19th century: maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings and sculptures.

• In the 20th century: motion pictures, computer programs, sound recordings, dance and architectural works

Exclusive rights granted by copyright

• Strictly territorial in scope...

• But bilateral and multilateral treaties establish minimum exclusive rights in member states

• Resulting in some uniformity across Berne Convention member states

Berne convention

• First established in 1886

• Subsequently re-negotiated in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris)

• Purpose: "protection of the rights of authors in their literary and artistic works" (Article 1)

• Rather than the protection of publishers and other actors in the process of disseminating works to the public

Berne convention

• Requires its member states to provide protection for every production in the literary, scientific and artistic domain

• Principle of national treatment: each member state to the Convention would give citizens of other member states the same rights of copyright that it gave to its own citizens (Article 3-5)

• Establishes minimum standards of national copyright legislation in that each member state agrees to certain basic rules which their national laws must contain

Berne convention

• Term of copyright: a minimum of the author's lifetime plus 50 years

• Copyright arises with the creation of a work and does not depend upon any formality such as a system of public registration (Article 5-2)

Berne convention

• Defined a few limitations and exceptions to copyright

• Principle (article 9): three-step test

• Limitations and exceptions accorded to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

• Free use of copyrighted work is expressly permitted: case of quotations from lawfully published works, illustration for teaching purposes, and news reporting (Article 10)

• Details left to national copyright legislation

Berne convention

• Moral rights:

• Introduced in the 1928 revision (Article 10bis)

• Give authors the right to be identified as a such and to object to derogatory treatment of their works

• Can not be transferred to others

Obtaining copyright

• Automatic in all Berne convention countries

• Thus need not be obtained through official registration with any government office

• In jurisdictions where the laws provide for registration, registration can serve as prima facie evidence of a valid copyright

• Specific case of a work for hire: the employer of the author may be he copyright owner

Copyright term

• Duration depends on the national juridiction, the type of work (e.g. musical composition, novel), whether the work has been published or not, and whether the work was created by an individual or a corporation

• International treaties establish minimum terms for copyrights

• But individual countries may enforce longer terms than those

• Generally default length of copyright: life of the author plus either 50 or 70 years

Copyright term

• In the United States, the term for most existing works: a fixed number of years after the date of creation or publication.

• For past works, some adjustments have to be made:

• Post-wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France

First-sale doctrine

• Available in the U.S. and in many countries

• Permits the transfer of a particular legitimate copy --> it is legal to resell a copyrighted book or CD

• But parallel importation restrictions in some countries --> the copyright holder can control the aftermarket

• Example: a copy of a book that does not infringe copyright in the country where it was printed does infringe copyright in a country into which it is imported for retailing.

Limits to copyright

• Fair use: some copying and distribution without permission of the copyright holder or payment to same.

• Non-exclusive factors to consider:

• the purpose and character of the use;

• the nature of the copyrighted work;

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

• the effect of the use upon the potential market for or value of the copyrighted work

Limits to copyright: private copy

• In France: an exception to rights management, not a right

• In Canada: private copying for personal use has been expressly permitted by statute since 1999

• In the U.S.: see Digital Millennium Copyright Act

Application to Computer Science

• Any software written is considered as works of literature, thus automatically covered by copyright.

• No need to register code in order to be copyrighted

• Copyright does not apply to algorithms

European references

• 1993 Copyright Duration Directive

• 2001 InfoSoc Directive, also known as Copyright Directive

• 2004 Directive on the enforcement of intellectual property rights

French copyright law

French copyright law

• "Droit d'auteur" philosophy developped in the 18th century in France at the same time as copyright in the UK

• Defined in Code de la propriété intellectuelle, which implements European copyright directive

• Two distinct sets of rights are defined:

• Proprietary rights (droits patrimoniaux)

• Moral rights (droits moraux)

Who is the author?

• The original creator(s) of any type of protected work

• For example: the artist, photographer, director, architect, etc.

• Copyright can be exercised by the original publisher when the author cannot be identified (anonymous works and collective works)

Protected works

• A work under French copyright law must be an "œuvre de l'esprit", a work of the mind.

• Hence there must be a human intellectual contribution to the work

Proprietary rights

• Aim: allow the author to exploit the work for financial gain

• Right to authorize the reproduction of the work (droit de reproduction)

• Right to allow its public performance (droit de représentation)

• Duration:

• 70 years after the author's death

• For collaborative works: 70 years after the last collaborator's death

• For anonymous or collective works: 70 years after the date of publication

• May be transfered to a third party

Moral rights

• Aim: guarantee the author the right to "the respect of his name, of his status as author, and of his work" (Art. L121-1)

• Right of publication (droit de divulgation)

• Right of attribution (droit de paternité)

• Right to the respect of the work (droit au respect de l'intégrité de l'œuvre)

• Right of withdrawal (droit de retrait et de repentir)

• Right to protection of honour and reputation (droit à s'opposer à toute atteinte préjudiciable à l'honneur et à la réputation)

Moral rights

• Inalienable, perpetual and inviolable

• Pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances

• Note that copyright (in the anglo-american meaning) does not generally involve moral rights.

• Some rights may conflict with the property rights of the owner of the work

• Example: an architect who tries to prevent modifications to a building he designed

Public domain

• A work enters the public domain (domaine public) once the proprietary rights over it have expired.

• May then be used without charge, so long as the moral rights of the author are respected.

Penal measures

• Breach of proprietary rights:

• Criminal offense "contrefaçon" (Arts. L335-2 to L335-4)

• Fine of up to 300,000 Euros and a term of up to 3 years imprisonment

• No distinction between breach of French copyright and the breach of foreign copyright

• But the breach must occur in France to be punishable

Exceptions to copyright

• Exception for private copy (note there is a "tax on private copy"), not a right!

• Fair use doctrine

• Three-step tests in DADVSI law (art.1): "The exceptions enumerated within this article cannot hamper the normal exploitation of the work, neither can they cause an undue loss to the legitimate interests of the author."

Exceptions to copyright

• Education

• Temporary technical copies, meant to address Web caches and similar systems

• Specialized facilities for the handicapped

• Quotations in information press

Application to Computer Science

• File sharing through peer-to-peer is a crime (DADVSI Act, 2006 + HADOPI Act, 2009)

• Computer programs and any associated preparatory works qualify for copyright protection in France as in other European Union jurisdictions.

• Databases are protected by a related sui generis right.

Digital rights management

Digital rights management

• Access control technologies that can be used by hardware manufacturers, publishers, copyright holders and individuals to try to impose limitations on the usage of digital content and devices

• Controversial

• Pros: needed by copyright holders to prevent unauthorized duplication of their work, either to maintain artistic integrity or to ensure continued revenue streams

• Cons: copyright holders are restricting the use of material in ways that are beyond the scope of existing copyright laws, and should not be covered by future laws

Digital rights management

• Examples: Fairplay (iTunes), Windows Media DRM, Adobe Protected Streaming

• iTunes: no more DRMs for music, but still for Apps and Videos

• Watermarks

• Data that is arguably steganographically embedded within the audio or video data

• Help provide prosecution evidence for purely legal avenues of rights management, rather than direct technological restriction

Digital rights management

• Can be used for different purposes that may include:

• For recording the copyright owner

• For recording the distributor

• For recording the distribution chain

• For identifying the purchaser of the music

World Intellectual Property Organization Copyright Treaty

• Many laws implement the 1996 World Intellectual Property Organization Copyright Treaty (WCT)

• Provides additional protections for copyright deemed necessary due to advances in information technology

• Ensures :

• that computer programs are protected as literary works (Article 4)

• that the arrangement and selection of material in databases is protected (Article 5).

World Intellectual Property Organization Copyright Treaty

• Provides authors of works with control over their rental and distribution in Articles 6 to 8

• Prohibits:

• Circumvention of technological measures for the protection of works (Article 11)

• Unauthorised modification of rights management information contained in works (Article 12)

• Text of the treaty: http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html

World Intellectual Property Organization Copyright Treaty

• Is implemented:

• In the United States: by the Digital Millennium Copyright Act (DMCA).

• In Europe: Directive 2000/278/EC

• Directive 91/250/EC creating copyright protection for software,

• Directive 96/9/EC on copyright protection for databases

• Directive 2001/29/EC prohibiting devices for circumventing "technical protection measures" such as digital rights management.

• Then: separate legislation by/within each of the Union's member states

Digital Millennium Copyright Act (DMCA)

• United States copyright law

• Effective since October 28, 1998

• Criminalizes:

• Production and dissemination of technology, devices, or services intended to circumvent DRM

• Act of circumventing an access control, whether or not there is actual infringement of copyright itself.

Notable court cases in the U.S.

• In August 2009, the Motion Picture Association of America won a lawsuit against RealNetworks:

• for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive by circumventing anti-piracy measures ARccOS Protection and RipGuard

European Union Copyright Directive (EUCD)

• Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

• Addresses same issues as the DMCA

• Exception to copyright: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for the data they transmit, even if it infringes copyright.

• All limitations to copyright must be applied in accordance with the Berne three-step test

Related rights and neighboring rights

• Describe database rights, public lending rights (rental rights), artist resale rights, performers’ rights, broadcasts and sound recordings.

• Assigns copyright protection to works which are not author works, but rather technical media works which allowed author works to be communicated to a new audience in a different form.

• Protection lower than the one granted to author works.

Related rights and neighboring rights

• In European Union:

• System of neighboring rights has thus developed

• Reinforced by the existence of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations in 1961

DRM in France: DADVSI Act

• French "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information"

• Bill reforming French copyright law, mostly in order to implement the 2001 European directive on copyright

• Focus on:

• repression of the exchange of copyrighted works over networks

• criminalizing of the circumvention of digital rights management

• recognizing rights to performers and publishers of recordings (avg. 20 years)

DADVSI: Criminalisation of DRM circumvention

• For those who knowingly work around a DRM technical measure for reasons other than research: fine up to 3,750 euros

• For those who supply others with means to work around technical measures, or who knowingly propose such means: prison sentences up to 6 months and/or fines up to 30,000 euros.

• Articles 13 and 14 of DADVSI Act

DADVSI: interoperability of DRM systems

• Providers of DRM systems should provide the necessary technical documentation to any party needing it to ensure that interoperability

• The publication of the source code or technical documentation of systems implementing DRMs is not prohibited by the protection granted to DRMs

Summary

Copyright vs Patent vs Trademark

• Copyright: protects original literary, artistic and other creative works

• Lasts for the duration of the author's lifespan plus 70 years.

• Patent: protects new and useful inventions

• Forces to pay fees. Usually lasts 20 years.

• Trademark: protects indications of the commercial source of products or services

• Continued active use and re-registration can make a trademark perpetual

Mickey Mouse case study

• Copyright and the Mouse: How Disney's Mickey Mouse Changed the Worldhttp://www.digitaljournal.com/article/35485

• Works with the early Mickey Mouse cartoons are protected under copyright till, at least, 2023

• In fact, Disney characters are also trademarked, which lasts in perpetuity as long as it continues to be used commercially by its owner.

• So, whether or not a particular Disney cartoon goes into the public domain, the characters themselves may not be used as trademarks without authorization.

ACTA negociations

• Anti-Counterfeiting Trade Agreement (ACTA)

• USA, the European Commission, Switzerland, Japan, Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore and United Arab Emirates.

• Aim: to fight against counterfeit goods and pirated copyright protected works by establishing international standards on intellectual property rights

• Very controversary

• A proposition to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant.

References

• Computer Science Law section at http://www.wikipedia.org

• Cours de droit dans la société de l’information, Morgan Magnin, École Centrale de Nantes, 2009.