Intellectual Property Law Quiz

Course Information

• Course title: Computer Science and Law
• Term: Fall/Winter 2024-25
• Instructor: Natascha Windholz, Krems
• Institution: University of Applied Sciences

Course Content

• October 3: Introduction to law, contract, and liability law
• October 10: Intellectual property law, Data Protection law
• October 23: Data Protection law
• November 5: Case study
• November 7: Cybersecurity law
• November 28: AI law, Case study
• December 5: Case study, various IT-related laws (e-commerce, consumer law, data-related acts, platform law), Q&A
• December 19: Exam

Intellectual Property

• Intellectual property law protects intellectual property.
• It can be narrower (excluding copyright) or broader (including competition law and trademark law).
• Areas:
  • Patent law (PatG): public register
  • Trademark law (MSchG): public register
  • Design law (GMG): public register
  • Copyright law (UrhG): no registration, act of "intellectual creation"

Patent Law

• Protects technical developments if they are novel and non-obvious to someone skilled in the art, with industrial application.
• Requirements for protection:
  • Invention in the field of technology
  • Knowledge of technical practice
  • Novelty (not yet state of the art)
  • Non-obviousness (level of inventiveness)
  • Repeatability and practicability
  • Industrial application
• Registration at the Patent Office (Patentamt) or European Patent Organization (EPO)
• Computer programs aren't patentable in the EU and the European Patent Office. This includes software for data processing systems.
• If the problem to solve with the software is technical, the program is patentable.

Patent Law: Types of Patents

• Product patent: e.g., machine, medication, electrical circuit.
• Process patent: e.g., wall drying systems, power generation system.
• Use patent: e.g., process for syringe with threaded spindle drive.

Patent Law: Exclusive Rights

• Prohibits third parties from producing, putting on the market, offering for sale, or using the patented invention.
• Includes importing or possessing the patented invention.
• Private use is permitted to everyone.

Patents: Licensing

• Patents are licensable.
• Voluntary licenses are possible.
• The licensor refrains from using the interdiction right and the licensee pays a fee for using the invention.
• In exceptional cases, compulsory licenses may occur. This happens if patented inventions are not exerted domestically, or if it's necessary for the public interest.

Utility Model

• Also known as a "petty patent".
• "Inventive step" is required.
• The same level of inventiveness is required for a utility model as for a patent. Differences include:
  • No examination regarding novelty or level of inventiveness.
  • Program logic can also be protected.
  • Utility models are not available in all countries. They are, however, possible in Austria, China, Germany, and Japan, for instance.

Trademark Law

• Trademark right for a product's appearance. It's increasingly important for marketing and brand recognition.
• Numeral, number, letter, or word/figurative mark.
• Registration with the Patent Office (Patentamt), EUIPO, or WIPO is necessary. There are chosen classes for products (e.g. paints, oils, leather goods).
• Priority of application is important (first come, first served).
• Term of protection is 10 years after registration, extensible.

Trademark Law: Examples

• Words: Coca-Cola, McDonald's, Zotter
• Design:
  • Logos (e.g. Shell, Audi, Apple)
• Word-design: e.g., adidas, Haribo, Milka
• Form (not applicable if the shape is necessary from a technical point of view, e.g. wafer Blocks “Knoppers”)
• Color: Milka-Purple, Manz-Red
• Sounds: Wetten Dass, Magenta-jingle, "Haribo macht Kinder froh". Representation by means of musical notes.
• Smell (can be a trademark)

Trademark Law: Exclusive Rights

• Protection in case of identity of goods and marks.
• Protect from infringing actions.
• Extended protection of famous trademarks.

Trademark Law: Licensing

• Trademarks are freely licensable.
• Exclusive or non-exclusive licenses are possible.
• Exclusive license = license with third-party effect.
• Licensee has specific rights, such as defense rights against third parties for not violating the trademark.
• License agreement includes continuing obligation.
• Trademark owner remains holder; but restricted to the licensee.

Design Law

• Protects the appearance of products from imitation.
• Affected by entry in a relevant register.
• Protection of the product's appearance covers: lines, contours, colors, shape, structure of surface, materials, and decoration/ornaments.
• Community design can be registered with EUIPO.
• International protection is possible through WIPO.

Design Law: Registration and Rights

• National design: each state separately.
• European Union design: protection covers all member states.
• Exclusive rights: manufacturing, offering, putting on the market, and importing/exporting.

Overview of Differences

• This table compares trademarks, designs, utility models, and patents in terms of suitability, duration, scope, market impact, strategic importance, and cost.

Copyright Law

• Protects work in certain areas (e.g., literature, sound art, visual arts) for creators.
• Individual intellectual achievement and the use of creative means are essential.
• Assessment is made on a case-by-case basis. Items not eligible for protection include style, manner, technique, formats, concepts, and mathematical formula.

Copyright Law: Types of Works

• Literature
• Musical works
• Visual arts
• Cinematographic works
• Photography (a type of visual art)
• Offensive works (are also protected by copyright).

Copyright Law: Authors' Principle

• Author is the one who created the work.
• Copyright occurs upon creation.
• No registration or application is necessary.
• Only natural persons can be authors.

Copyright Law: Joint Creatorship

• Several people can create a single work.
• The result is an inseparable unit.
• Copyright is shared by all creators.
• Attribution issues, exploitation/alteration, and contractual provisions are problems associated with joint creatorship.

Copyright Law: Term of Protection

• Begins with creation of the work.
• Lasts for 70 years after the creator's death.
• Joint creators: 70 years after the death of the last surviving joint creator.
• Anonymous/pseudonymous works: 70 years after the work's creation.

Copyright Law: Scope of Protection

• Exclusive rights include: personality rights of the creator, adaptation rights, ancillary rights, and other rights (like images).
• Includes collecting societies like AKM, Literar Mechana, and GEMA.

Copyright Law: Exclusive Rights

• Right of reproduction, distribution, public communication, and making available
• Rental and lending rights
• Broadcasting rights
• Recitation, performance, and presentation rights.

Copyright Law: Principal of Exhaustion

• The exclusive rights expire when the work is placed on the market within the EEA.
• The right to use is transferred to third parties.
• This rule applies to imported goods from outside the EEA, where the product may not apply.

Copyright Law: Right of Reproduction

• "Copyright".
• Any reproduction is covered, regardless of the method or type of device
• Even parts of the original work are covered.
• Also covers copies in altered form
• Recording of recitations or performances, or works of fine arts based on author's plans are specifically covered.

Copyright Law: Right of Distribution

• The concept of the tangible work is important.
• Making the work available to the public is necessary for the right of distribution.
• Principle of exhaustion.
• Right to place the work on the market, gift copies, rent them is covered
• No transfer of ownership is necessary for distribution rights to be applicable

Copyright Law: Right of Public Communication

• For interactive access, for example on the internet.
• Concept of "public" does not demand that all viewers are in the same place
• Examples include file sharing and podcasts.

Copyright Law: Personality Rights of the Author

• Protects the intellectual connection between the work and the author.
• Not transferable, or completely waivable.
• Applies to creatorship protection
• Creator decides how their work is labelled (e.g., pseudonym).
• Adaptations/reproduction must retain the original nature.

Copyright Law: Right of Adaptation

• The original remains unchanged.
• Reworking, dramatization, translations are examples of adaptation.
• Consent from the creator of the original is necessary.
• Free use of an independent work is an individual new creation.
• Software directive and guidelines for assessing the differences between the new creation and the original are described

Copyright Law: Licensing

• Key for economic exploitation; use fee.
• Certain or all use types allowed.
• Exclusive right of use.
• Limitations to restrictions, including subject matter, place, and time.

Copyright Law: Permission and Right to Use

• Permission to use is the right to use the work.
• Contains the right of exclusive and absolute use
• Rights to sue exist.
• Only obligatory rights vis-à-vis the author.
• Adaptation right is usually not included.
• Restrictions on adaptation rights include limited or unlimited use, and burden of proof rights with applicable beneficiaries.

Copyright Law: Free Use

• Exceptions to exclusive rights.
• Products of social commitment are interpreted narrowly.
• Economic value must not be undermined.

Copyright Law: Reproduction for Personal/Private Use

• Reproduction for personal use applies to anyone, including natural and legal persons.
• Copies are allowed for paper or similar medium.
• Includes personal, professional usage.
• Copies can be passed on.
• Not meant for public availability.

Copyright Law: Right to Quote

• Quotation is the word-for-word adoption of someone else's work to use in some way.
• Source must be made clear.
• Quotation does not need to remain word-for-word, translation is permitted, and this right guarantees freedom of expression.

Copyright Law: Text and Data Mining

• Automated evaluation of patterns, trends, and correlations.
• Reproduction someone else's work is permitted for research, unless explicitly forbidden.
• Research is permitted for organizations in the public interest.

Copyright Law: Enforcement

• Most important claim is for omission, future infringements, and removal.
• Publication of judgements is vital for public information.
• Damages are difficult to prove.
• Often claims are for the double adequate remuneration and often criminal legal measures are considered, especially for repeated infringements.

Copyright Law: Computer Programs

• Literary works.
• Broad understanding of the term "computer program".
• Established source code is protected as a literary work.
• Exemptions include ideas, principles, and program logic.
• User interface is not protectable under copyright.
• Unique design is essential if a user interface is to be protected.

Copyright Law: Principal of Exhaustion in "Used" Software

• Applies to software.
• Offline and online purchases are covered.
• Offline: Asserting rights; special conditions (volume licenses).
• Online: No reproduction rights for individuals, but rather for production purposes, and the specific item.
• Reproduction is not exhausted, but it may be restricted by time or cloud services.

Copyright Law: Examples of Open Source Software

• Linux Kernel.
• Linux-based OS (e.g., Android, Red Hat, Ubuntu).
• Web browsers (e.g., Chromium, Firefox).
• Software for software development (e.g., Git, IntelliJ IDEA, Eclipse).
• Webservers and website software (e.g., Apache HTTP Server, MySQL, Node.js)

Copyright Law: Creative Commons Licenses

• Extends open-source ideas across various fields (e.g., music, photos, videos, text).
• Six types of licenses, from most permissive (CC0) to least permissive (all rights reserved).

Copyright Law: Reasons for/against Open-Source Licenses

• Advantages include open collaboration, open innovation, and the setting of standards.
• Disadvantages include a lack of licensing fees and the potential for competitors to gain information and knowledge.

Enforcement of IP on the Internet

• Traditional infringements: selling counterfeits online.
• New infringements: "cracked" software, illegal downloads/streaming, misuse of promotional content.
• Copyright is the primary focus.

Enforcement: Counterfeited Products

• Problem: Finding infringing products.
• Strategies:
  • Letters from attorneys (sometimes used with threats).
  • Platform-specific channels often used for this and are usually quite successful.
  • Online forms

Enforcement: Blocking Access to Websites

• Difficulties with servers in third countries.
• Local legal action may be possible.
• Based on structural copyright infringements.

Enforcement: Upload Filters

• Political debates around the EU Digital Single Market Directive and filtering content.
• Platforms have liability for copyrighted material.
• Differentiation: determining free use versus infringement is a challenge for algorithms.

Enforcement: Upload Filters

• Service providers need authorization from the rightholders.
• Service providers are liable for infringements, unless they are making best efforts.
• This is determined by the CJEU (2022).

Questions?

• This is an open question/response section.

Repetition Questions (Patent Law)

• A: Correct. Software patents are not accepted in the EU, but software can be copyright.
• B: Correct. Invention concepts have been accepted, but not by the Austrian Patent Court.
• C: Correct. A method can be patented if it's technical.
• D: Incorrect. Software patents are not accepted worldwide.

Repetition Questions (Trademark Law)

• A: Correct. Trademarks pertain to identifying products.
• B: Correct. Trademarks include words, sounds, colors, and designs.
• C: Correct. Registration is necessary with the relevant office for trademark protection.
• D: Incorrect. Trademark protection typically has a defined term and is not permanent.

Repetition Questions (Copyright)

• A: Correct. Any natural person can be the author of a copyrighted work.
• B: Correct. A work’s distinctiveness can come from any way, including a personal touch, and it can be enough to qualify.
• C: Correct. In cases of doubt, courts decide whether a work meets copyright protection criteria.
• D: Correct. Literature, movies, styles, and painted pictures are examples of possible copyrighted works.

Repetition Questions (Copyright Act)

• A: Correct. Exclusive rights include the right of reproduction.
• B: Correct. Exclusive rights include the right of broadcasting.
• C: Correct. Exclusive rights include the right of distribution.
• D: Incorrect. Right of non-repudiation is not an exclusive right under the Austrian Copyright Act.

Repetition Questions (Software Protection)

• A: Correct. Software is not usually protected by patent law but can be by other means.
• B: Correct. Copyright is one way to protect software as a literary work.
• C: Correct. The Austrian Copyright Act has a definition for software.
• D: Incorrect. The protection of the software encompasses elements like the program's logic and algorithms and the user interface, but not everything.

Repetition Questions (Open-Source Licenses)

• A: Correct. Open source facilitates open innovation.
• B: Correct. Open source software is more likely to set standards.
• C: Correct. Open collaboration often fosters improvements.
• D: Incorrect. While sharing can occur, competitors may also obtain more information with access to software.

Repetition Questions (Internet Copyright Infringements)

• A: Incorrect. While trademark infringements do exist on the internet, selling products violating trademarks isn't specifically a copyright matter.
• B: Correct. Illegal streaming of movies infringes copyright.
• C: Incorrect. Violating privacy is not a copyright issue.
• D: Correct. "Cracked" software often involves a copyright infringement.