Copyright, Intellectual Property and Innovation - Case Study Example

DO NOT FORGET YOUR SUR IN THE HEADER Your The Property Rights for Software Introduction Ever since man first invented the wheel there have been arguments about who invented it, after all the wheel has had a huge influence on the development of the society we live in today. How much would the inventors’ family be worth now if it could be proven beyond doubt it was their ancestor who was the innovator? Or would they now it would probably be considered as in the common domain, owned by all of society. Such problems continue today with the software industry, which is part of today’s computing industry, the equivalent to the invention of the wheel in its day. It can be difficult for a developer to prove a new piece of software is theirs, especially when an unscrupulous competitor starts claiming they made it, and claiming huge amounts of money from the developer. Property rights are a complete nightmare for the small company or ordinary person who simply wants to develop software for its own sake and wishing to make a small profit while doing so. Copyright is one area of protection that should be straightforward, but it is not. Patenting software seems a good idea, but this can be difficult, time consuming and expensive. Intellectual property rights means’ software has to be proven to be unique, which is not always possible at the start of a project where such thinking may not even occur. For as the project begins, from the moment the first code is written and an idea aired, there is the danger of theft. For the public who want to use the software, there are problems not of their making in all the property rights, such as serious time delays in getting something up to date and useful for them. Intellectual Property Rights for Software Intellectual Property Rights (IPR) have only been in existence since 1967, and software has only been recognised as needing protection since the late 1970’s, before that it was not considered very important and was usually supplied by the company who built the hardware as a complete entity. Once it was realised that software could be a separate product with its own market value, and then it started to become important to protect it. Later the type of thing that could be protected was argued over by software companies unclear as to what was in the common domain and what was completely theirs. A few years ago there was a massive argument between Apple computers and Microsoft over the use of the Trash Can in their respective operating systems. Apple claiming their right to it as their invention and Microsoft saying it was something in the public domain, needed by any operating system. The argument went to the courts where it remained for years, it was finally decided by Microsoft to use a different naming convention; Apple eventually lost, but since Windows 95 and to Windows 7 there is a Recycle Bin. (Mehta, 2009). The problem is that IPRs are a difficult area to understand; there is nothing solid in it. When the public are asked about it, they often agree it is important, but do not know quite what it is or how to go about it using it or their own rights under it; other than in the broadest idea that patents and copyrights are in the stew somewhere. That is unless of course they have their own experiences of it. So many people try to ignore or circumvent such protections that the software industry has protections in place, as with the music industry. Where download sites such as Napster were giving away music for free on their peer-to-peer network, when the creators should have been paid royalties, the Recording Industry Association of America finally sued Napster in 2001, effectively closing them down. Now there are online legal sites such as Apple’s iTunes where music can be bought fairly cheaply and easily maybe a development that would not have happened without Napster, now the creators of the music get fair payment. (Knight, 2004). In software there are Digital Rights Management (DRM) systems that can be put in place, these can protect software by stopping users doing certain things, like no copying or read only files, or limiting access to a single computer and not allowing access from any other like a laptop. People have found these restrictions frustrating as in the eyes of the public if they have spent good money buying something they should be able to do whatever they want with it. In 2004 legislation was put into place under the Campaign for Digital Rights that made it illegal to try to circumvent the DRM’s for anything created. (Gehring, 2004). But there are laws for the customer or user; in the UK, it is called Fair Dealing and in the USA, Fair Use, they are a part of copyright laws and allow an individual to have certain permissions like copying some parts of a file or viewing digital materials, but a DRM does not know or care if the person is doing something illegal or is doing something allowable it simply stops everyone. Which is against the fair deal/fair use regulations. If a user tries to circumvent the DRM regardless of their legitimacy they are deemed to be breaking the 2004 legislation, Making life very difficult for a legitimate user who is caught out unknowingly and may be totally ignorant of the facts, which of course is no protection under the law. (Knight, 2004). Plagiarism is a problem today it is easy to search the internet and get some written work or even something like software coding from another person, but if that person is not cited then it is theft of that persons IPR’s. This is a major headache for colleges and universities where students found it easy to get around homework or even exam questions by simply copying from the web. So to stop this ant-plagiarism programs have been developed which can search for words or phrases across the net and hopefully stop such misdemeanours. Again some people will attempt to get round the programs and again they can get themselves and their college in big trouble doing so. Intellectual property rights and the various ways of protection will be explored now. 1. Trade Secrets. 2. Copyright. 3. Patents. 4. Trademarks. 1. Trade Secrets. It can be possible to have a limited IPR by keeping software as a trade secret, the problem with trying this with software is the product has to be sold and loaded onto someone else’s computer and because of the possibility of reverse engineering to get the code, etc, there is a good risk of theft. But as technology moves forward and cloud computing becomes more usual it may then work, as the customer does not have to download the program but use it in the cloud. Even then keeping software locked away from thieves is going to be difficult and expensive; it’s not like keeping a physical item like hardware under lock and key. 2. Copyright. Copyright has been in existence since the 1500’s, as even back, then it was understood that works of creation needed some form of protection. In the UK, copyright law is mainly set out in the Copyright, Designs and Patents Act 1988 (CDPA). The CDPA has been amended substantially since, in 2001 the UK implemented the Copyright and related Rights Regulations with European Copyright Directives updated in 2004 with the intention of harmonising some aspects of copyrights across Europe. Many countries giving a minimum level of copyright protection have signed the Berne Convention to allow owners of other member countries protection, but not all countries agree. (Knight, 2004). Software is considered as a literary work and as soon as there is something down on paper or another medium for recording it is covered by the copyright laws, although it should have the © symbol. The software has to satisfy the basic requirements for qualifications E.G. it’s author should be a UK citizen, or it was originally created in the UK. (IPO, 2008). Copyright protection extends to the particular form in which an idea is expressed. In the case of software, copyright law would protect the source and object code, as well as certain unique original elements of the user interface. (Freiburn, no date). If someone wants to copy a literary piece such as a computer program or a database they must have the permission of the owner (creator) or in the case of a team of developers or programmers, then all of them, unless they are employees of a company, in which case the company usually owns the rights. If someone does not have permission they are infringing the copyright laws and can be taken to court, (IPO, 2008). The creator or owner of a piece of software has certain rights: A. Economic rights, which gives the owner a chance to make money from the creation, either by sales or renting. B. Moral rights, these are the non-economic rights of the owner, such as the right to be recognised as the creator of the software, the right to object against something said that is derogatory or someone claiming it is their work and not the actual creator. The owner can do a variety of things with the copyright, it can be assigned to someone giving them full ownership or it can be licensed which is the route most software vendors use. Software vendors normally give a limited license to the program buyers, rather than selling them the complete copyright; the buyer has a limited use of the software, for a private individual today this means it can be used on one or two computers in the home, and not for business use. If for business use the vendor often charges more, but the buyer may then be given professional support and a long time period before renewal of the license. 3. Patents. Patents are an area worth exploring for software; it is time consuming though, with a lot of expense, but they can give up to 20 years protection on parts of a program not covered by copyright law such as ideas, systems, methods, algorithms, and functions embodied in a software product: editing functions, user-interface features, compiling techniques, operating system techniques, program algorithms, menu arrangements, display presentations or arrangements, and program language translation methods. (Freiburn, no date). Filing an initial application costs up to £30, although it is cheaper if applying online at £20, but still an indicator of just what costs can be from the beginning of the process. There are a variety of areas to be explored before seriously thinking of patenting, the Intellectual Property Office (IPO) recommends checking the product is not already in the public domain, is the invention new, are you the legal owner and remember the patent granted by the IPO is only valid in the UK. If wanted elsewhere then it has to be an international patent. If after all the above points are covered satisfactorily, then to finally get it patented in the UK, it will cost between £230 to £280 with a typical patent application taking two to three years before it is granted. (IPO, 2008). Figure 1: Dilbert Patent Problems. Dilbert (2011). 4. Trademarks. Another area of contention is that of the trademark or brand name for many companies and their software. It gives the company’s products a style and the potential customer an immediate knowledge of who is the innovator. Protection can be gained; in the UK the IPO can register a logo or brand name as a trademark making it illegal for others to use it. Again it does cost, IPO charges £200 for it if done by paper copy or if done online it is £170. (IPO, 2008). Conclusions The public have problems today as sometimes they hear there is an important piece of new software coming out and other technology companies, whether hardware or equipment manufacturers are waiting to use it, but there can be a difficulty waiting for the code to be patented. E.G. A UK company could make a wonderful program to help sort out traffic jams, decide to patent it, and while the software is going through the whole process, they get into a court battle as someone else has ignored the patent pending and copyright laws and gone ahead to create a similar program, getting it to market ahead of the originator. But not in the UK, so the public are left battling with the morning commute still, while frustratingly watching the wonderful traffic reforms in another country on TV. The original company is left with an expensive court action to pay for and may have even lost; if the software is now considered as common good. There is a lot of confusion about what can and cannot be done in the present system. Many people believe that the regulations on IPR are out of balance between the owners and the users today and need updating or changing, allowing users some freedoms they do not have, certainly as technology moves ahead and such things as cloud computing become common place there will be a need for changes to the laws to reflect the changes. References Adam Scott. Dilbert Cartoon. United Syndicate Features Inc. 3rd September 2011. Accessed: 3rd September 2011. Web: . Freibrun Eric. Intellectual Property Rights in Software: What They Are and How the Law Protects Them. The Law Offices of Eric Freiburn Ltd, Computer and Information Technology Law. (No date). Accessed: 31st August 2011. Web: . Gehring Robert. Software Development, Intellectual Property Rights, and IT Security. Computers and Society Research Group, Technical University of Berlin. 4th July 2004. Accessed: 1st September 2011. Web: . Intellectual Property Office. (IPO). Copyright, Patents and Trademarks. An executive agency of the Business Innovation and Skills Department. 30th November 2008. Accessed: 1st September 2011. Web: . Knight Alison. Internet Publishing and Digital Rights. The Changing Balance Between Access and Ownership. Proquest. July 2004. Accessed: 1st September 2011. Web: . Mehta Jay. Oracle Recycle Bin. oraBlog. 7th July 2009. Accessed: 31st August 2011. Web: . Read More