Intellectual Property Law and Confidentiality Protection - Assignment Example

Lecturer Intellectual Property law The paper aims at explaining the legal action that a software company can take against a startupcompany, that it believes uses it software products unlawfully through using the services of a former employee. The legal analysis is done according to the legislations of the United Kingdom. The areas of focus are six: confidentiality, ownership, originality, copying, infringement and trademark. Many startup companies in the software industry are developed and successfully managed based on the experience of the founders and key staffs. The crucial software experience was acquired when working for other established software business (Perelman 2012). Computer programmers and experts usually copy critical software, and then installing them in several computer projects, including initiating new computer businesses. The original company should thus take appropriate measures to ensure that the former employee does not use its software products in the activities of the startup software business. Confidentiality Protection The original company can take legal action to prevent further unauthorized usage of its software products. All employees of the original company signed the non-disclosure agreement. The agreement safeguards the copyright information of the original company against disclosure by both current employees and former staffs. The original company discolored to the employee under focus, all the software it has and the desire to ensure confidentiality. The original company understands that the software products are easily transferable and thus can be installed into the operation processes of other competing technology firms (Rand 2006). The software areas that are protected under the UK legislation include; software source code, software documentation, intelligent correspondences, software products, the discloser ownership and control rights, and publicly stated disclosure information. The original employer thus has adequate legal backing to engage in investigating if the startup company developed its software products, with the aid of the product codes that it developed. However, certain information cannot be legally investigated, in relation to software confidentiality. The information includes; software information that is adequately found with the members of the public, commonly applied programming algorithms, information that is rightfully possessed by the Startup Company, and information that the startup company privately and independently generated. The four issues are legally allowed by the Copyright act, to be used by any software company. The legal team of the original employer must ensure effective retrieval and documentation of the information that the employee under question accessed during his employment duration. The documented information will act as a legal proof that the employee transferred certain key software codes information to the new startup company. The legal team should then appropriately access the software products developed by the new company, and then test the compatibility of the software products with their codes. If the products and the codes are compatible, it means the new startup company used their codes without authorization. Legal action will then be initiated against both the startup business and the former employee. The product codes of a company are adequately protected by the United Kingdom legislation regarding software. The employees who sign the non-disclosure agreement bind themselves legally. The former employee signed the agreement with the original company, and thus is not authorized to disclose the codes the accessed to the competitors. There are appropriate channels for accessing the product codes of the original company. The startup company should legally request for the cods in a business transaction manner. The codes are part of intellectual property of the original company, and therefore, can only be sold through the appropriate company business arrangements (Reisman 2009). Ownership of Software Products The ownership of software products and related codes or characteristics is protected under the laws in the United Kingdom. The ownership is illustrated through the intellectual property rights. Thus intellectual property rights are key issues that must be considered in the software industry. The original software company must, therefore, illustrate ownership rights of the product code under investigation. The ownership proof of the codes is the most basic legal requirement. In relation to software codes, there are four major intellectual property rights. The rights are trademarks, patens, trade secrets and copyrights. Each right illustrates special consideration and analysis (Schneider 2014). Trade secrets, patents and also trademarks are responsible for safeguarding the software technology for generating the codes. Trademark is responsible for protecting the software symbol of products codes. The original company must legally prove that the startup company used its software codes without legal authorization. Patent rights enable the original company to use the product codes exclusively for twenty years and the right of control. The former employer has this right and the staff at the startup adequately knows this. Hence, utilization of the codes by the startup is not allowed. The original company is thus rewarded for inventing the codes for duration of twenty years. The copyright also safeguards the object code, and the source of the codes. Copyright also protects the user interface and also the unique elements of the product codes. The original company is the owner of the software codes, and thus ahs exclusive rights over usage; for instance, the rights to distribute the codes, modify the codes and also copy the product codes. The original company also has the right to sale or licenses the codes. The startup company must thus obtain a license from the original company so as to access, use and also modify the product codes and also software products. The copyrights laws in the United Kingdom are also aimed at rewarding creative or innovative efforts, like the one done by the original company in generating the product codes and also coming up with new software products. Copyright laws also ensure adequate safeguards against duplication projects, as illustrated by the activities of the new startup software company. Unauthorized usage of the software products is considered infringement, and thus can be sued for damages, compensation and statutory fines. Trade secrets involve the unique product codes that provide competitive advantage to the original company in the lucrative software industry (Shapiro 2007). The owners of the trade secret thus aim at keeping it a secret, unless obtained through authorized and legal avenues like licensing. Originality Aspect of the Software There are two critical cases that illustrate the originality of software products and also codes. The first case is referred to as Lega, Lexmark. The case entails the direct copying activity on a software program, or part of the code, that raises suspicion or adequate questioning. The copying activity shows expressive content. The second case entails Whelan, Altai. The case explains the originality of other structural and non-literal aspects of the programs whose literal aspects are directly copyrighted. The level of literal components of a program is adequately shown by the Lexmark Int’l, Inc. v. Static Control Components, Inc. decision. The originality components of the copyright laws in the United Kingdom are not sufficient Hence, several courts have previously ruled that the computer software is insufficiently original to warrant effective safeguard under the copyright laws. The originality safeguard is usually provided to the software companies in very rare circumstance (Bettig 2006). However, the original company under discussions qualifies for originality protection. This is because the software codes under dispute are very unique and were solely developed by the technical team of the company. The former employee had the rare chance of accessing the codes; and despite signing the non-disclosure agreement, decided to disclose the codes to competitors and also future employers. However, other legal experts argue that the code usage is inseparable from the functionality, and hence illustrates minimal levels of originality. This is not true in the case of the original company, because the codes are separately generates and they can be utilized to upgrade other software with minimal functionality. The program code behaves in a similar manner to other software programs and thus it is copyrightable, due to the original illustration of the implementation processes. A software program is considered unoriginal, when the expression extent is obtained from the public and also other similar codes. However, the product codes utilized by the original company are original; this is because the expression was not illustrated in the public domain (Boulder 2011). The expression was only present in the domain of the software team of the company. This is the reason why the former employee had adequate access to the generation and usage of the codes. The copyright legislations of both United States and the European Union entirely protect the original program, and also the preexisting codes. Copying of the Software The former employee and the new startup company that he works for, illustrate unauthorized copying of the software programs and codes of the former employer. Huge financial losses are experienced by software companies, when their products are inappropriately copied. Thus software companies like the original company continuously enforce their legal rights and authority against the people and also organizations that copy the software, without appropriate agreements or authorization. The copyright laws extend to software products like programs and codes. As a common legal rule, it is considered copyright infringement to produce copies of safeguarded works without obtaining adequate authorization from the copyright owner, in our case the original software company. The startup company does not own the rights to the copyright products and thus it is not legally allowed to use the products (De 2010). The employee also abused his position at the original company. This is because he used his position to access the codes and related software products of the company. In an unauthorized gesture, the staff disclosed the codes to his present employer. The employee can thus be sued for illegal sharing of sensitive information of the former employer. Another area of legal action is the sharing of unauthorized information concerning a former employer, with the present employer. The only copying that is allowed is within the company premises and on authorized computer systems. Only the software technical team can access the codes, and this further explains the unprofessional conduct of the former employee. The former employee was part of the general technical team, and not the software team. It is thus very questionable how he got the opportunity of accessing the software codes and related software products. There are legal penalties for unauthorized copying of the software. The penalties include; actual damages, infringement fines and also statutory damages for the practice. If the legal suit against the startup company is successful, the management of the company may be forced to withdraw their operating license. The court judges are the ones who set the damages amount or type, according to the jurisdiction requirements. If the copying act is legally proven as a willful activity, then the judge can impose heavier penalties on the startup company (Farah 2010). The harsh penalties may be high financial cost and also withdrawal of operating license. The startup company can however, minimize legal consequence. This is through obtaining license agreement s with the original company that developed the codes. Software Infringement Software infringement is illegal in the United Kingdom. Thus, the startup company faces the high risks of being sued by the legal team of the original software company. The employee in question is also under serious risk of being sued for infringement and also unprofessional conduct against a former employer. One aspect of infringement involves softer program and code piracy. Piracy entails unauthorized usage of a software component. The new startup company is using software codes belonging to the established company without permission, in the process of upgrading their software. Thus, this entails a basic reason for a legal suit. Copying infringement is also illustrated in the case. The startup company is using codes of another company to produce its software products without permission. The employee is guilty of aiding piracy. This is because he gave his employee unrestricted access to the software codes that he obtained from his former employer without authorization (Greenhalgh, Clinton & Rogers 2010). Software publishers take software piracy as a very serious crime. Thus, the former employee and also the startup company are liable for damages that may sum up to huge financial costs. The larger picture illustrates that code copying cheats the developer, and all the clients who use software that have been upgraded by the unauthorized codes. Copying increases financial risk to the Startup Company and also operational risk because the license may be withdrawn in a worst case scenario. The original software company discovered the illegal usage of its product codes through routine software inspection and audits. Piracy watch groups and also network administrators have adequate abilities of detecting the unauthorized usage of the product codes. Thus, the legal team of the original company possesses sufficient evidence collection capabilities. The evidence will be used to effectively prosecute the infringement case in court. Intellectual Property in the United Kingdom The present intellectual property laws in the United Kingdom developed as from the 1707 law of the Act of Union. The present intellectual property legislations are generally based on the statutes initiated by UK parliament developed due to the issue of copyright, referred to as post-Union Statute of Anne (1709). This law covered the entire UK, with minimal differences which take into consideration the diverse court system or structures, as illustrated by the different jurisdictions of Scotland, Wales, Scotland and England. Hence, the law was mainly utilized in a fairly uniform pattern by the judges in the diverse jurisdictions. The United Kingdom law implies that the English, Scots and Northern Irish laws are integrated together. There is also enough opportunities of noting the minor differences among the three laws were appropriate. In the UK, therefore, the software protection in terms of all categories of copyright are protected through the Copyright, Designs and Patents Act of the 1988 (Reisman, 2009). The law is commonly known as the Copyright Act presently, due to the numerous amendments that occurred. The Copyright Regulation of 1992 adopted the May 14, 1991 Council Directive concerning the lawful safeguarding of computer software and related programs. Thus, the original company in the case study has adequate legal backing to initiate legal proceedings against the startup company (Perelman, 2012). The Software Directive is thus a key legal basis for the protection of intellectual property in the areas of software like product codes. The intellectual property legislations in the areas of software innovation give exclusive rights to the original creators of software products. Hence, the innovators like the original company have legal rights to benefit adequately from the economic viability of their software products (Perelman, 2012). The legal rights are mainly applicable in six main areas. Firstly, the original company has exclusive rights of copying their software products. Secondly, the original company can decide to issue the copies to members of the public and other organizations through the appropriate business processes. Thirdly, the original company can decide to rent or lend the product codes to public users in accordance to the law. Fourthly, the original company is legally allowed to displace software products in public. Fifth, the original company is legally allowed to communicate product code information in public, if the move suits them (Shapiro, 2007). Only the original company is legally allowed to review or adapt their software products. The startup company contravened the law through utilizing the software codes in the development of their products. Bibliography Bettig, Rich. (2006). “Critical Perspectives on the History and Philosophy of Copyright.” The Political Economy of Intellectual Property. (pp. 9–32). Boulder, Call. (2011). “Intellectual Property Rights in Frontier Industries: Software and Biotechnology.” AEI Press. De, George. (2010). Intellectual Property Rights. Oxford, England: Oxford University Press. Farah, Paolo. (2010). “Intellectual Property Rights, Human Rights and Intangible Cultural Heritage.” Journal of Intellectual Property Law. Greenhalgh, Clinton & Rogers, Mick. (2010). Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press. Kinsella, Stephan. (2011). "Against Intellectual Property". Journal of Libertarian Studies. Perelman, Michael. (2012). Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity. London: Palgrave Macmillan. Rand, Ayn. (2006). Patents and Copyrights. New York: New American Library, 1966, pp. 126– 128 Reisman, George. (2009). Intellectual Property. London: MacMillan. Schechter, Roger. (2013). Intellectual Property: The Law of Copyrights, Patents and Trademarks. New York: West/Wadsworth. Schneider, Patricia. (2014). "International Trade, Economic Growth and Intellectual Property Rights: A Panel Data Study of Developed and Developing Countries.” International Trade Journal. Shapiro, Robert. (2007). "Economic Effects of Intellectual Property.” London: Longhorn. Read More