Computer Science and Law Course (Fall/Winter 2024-25) - IMC PDF

Computer Science and Law Fall/Winter Term 2024-25 Natascha Windholz, Krems Course Content 3 October: Introduction to law, contract and liability law 10 October: Intellectual property law, Data Protection law 23 October: Data Protection law 5 November: Case study 7 November: Cybersecurity law...

Computer Science and Law Fall/Winter Term 2024-25 Natascha Windholz, Krems Course Content 3 October: Introduction to law, contract and liability law 10 October: Intellectual property law, Data Protection law 23 October: Data Protection law 5 November: Case study 7 November: Cybersecurity law 28 November: AI law, Case study 5 December: Case Study, Various IT-related laws (e-Commerce, consumer law, data related acts, platform law), Q&A 19 December: Exam 2 03 Intellectual Property 3 Intellectual Property Rights Intellectual property law is the area of law that serves to protect intellectual property. The term often used in this context often used in this context 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”, © 4 Patent law Patent law protects technical developments if they are novel, i.e. if the development is not already available or known. In addition, the invention must not be "obvious to a person skilled in the art" and must be susceptible of industrial application. Requirements for protection: Invention in the field of technology​ Knowledge of the rules regarding technical practice​ Novelty = not yet state of the art ("Stand der Technik")​ Non-obvious (level of inventiveness)​ Repeatability and practicability​ Industrial application Registration at the Patent Office (Patentamt) or European Patent Organization (EPO) 5 Patent law: Computer Programs Invention concept rejected so far​ Patents for data processing systems per se, ie software patents, are precluded from patentability, both at the Austrian and the European Patent Office!​ Method may be patentable as a computer program, if it is technical​ As a rule, a method is classified as technical, if it encompasses the methodical use of controllable forces of nature (eg software for the control of a robotic arm)​ If the problem to be solved by the invention is a technical one, the program is patentable​ Computer programs/Software are basically not inventions and therefore not patentable​ The vast majority of produced software is solely protectable by copyrights​ Note: Software patents are possible in the US​ 6 Patent law: Types of patents Product patent​ Eg machine, medication, electrical circuit​ Process patent​ Eg wall drying systems, power generation system​ Use patent​ Eg process for use of a syringe with a threaded spindle drive​ 7 Patent law: Exclusive rights Prohibit third parties from industrially:​ Producing ​ Putting on the market​ Offering for sale​ Using​ Importing or possessing​ Note: Private use permitted to anyone​ 8 Patents: Licensing Patent is licensable​ Voluntary licenses possible​ Licensor refrains from using his right of interdiction​ Licensee is permitted to use the invention and pays a fee​ In exceptional cases: compulsory license​ >> If patented inventions are not exercised domestically to an appropriate extent or if a compulsory license is required in the public interest​ 9 Utility model Also known as "petty patent"​ "Inventive step" necessary​ Same level of inventiveness required​ Differences to a patent:​ No examination with regard to novelty or level of inventiveness​ Program logic can be protected as well​ Not available in all states worldwide​ Possible in eg Austria, China, Germany, Japan​ 10 How are these called and what do they? Can you group and „classify“ them? Group exercise (4-5 people, 10 min) Present your findings (1 min) 11 Trademark law The trademark right is a right to the appearance of a product in the form of a in the form of a numeral, number, letter or word/figurative mark. Trademarks are increasingly becoming a very important building block for a company for successful product marketing. Registration at Patent Office (Patentamt) or EUIPO or WIPO necessary, registration only for certain chosen classes of goods classes of goods (e.g. paints and oils, leather goods, toys, alcoholic beverages excluding beers) (currently according to the Nice Classification 2014). Priority of application is crucial (first come, first served)​ Term of protection: 10 years after registration with the possibility of extension​ 12 Trademark law: Examples Words: Coca-Cola, McDonald‘s, Zotter Form (not applicable if the shape is necessary from a technical point of view, e.g. wafer Blocks “Knoppers”: Design: ​ Word-design: ​ Color: Milka-Purple​, Manz-Red 13 Trandemark law: Examples Sounds: Wetten Dass, Magenta-jingle, „Haribo macht Kinder froh“ >> Representation by means of musical notes Smell? 14 Trademark law: Exclusive rights Protection in case of identity of goods and marks​ Create a very high scale due to product identity​ Protection in case of likelihood of confusion​ Likelihood of confusion is higher, the greater the label force of the older trademark is​ Protection from infringing actions​ Extended protection of famous trademarks​ 15 Trademark law: Licensing Trademark is freely licensable​ Exclusive or non-exclusive licenses possible​ Exclusive license = license with third-part effect​ Licensee with rights against third persons (defense without consent of the trademark owner)​ Trademark owner gives licensee the right to use the trademark​ License agreement establishes a continuing obligation​ Trademark owner remains right holder, but is contractually restricted with regard to the licensee​ 16 Design law Design law contains regulations to protect the appearance of products, affected it protects the respective design against imitation. Registration is affected by entry in the relevant register. In addition to national protection, a Community design can be registered with the EUIPO and international protection can be applied for through the WIPO. Protection of the product's appearance: Lines​ Contours​ Colors​ Shape​ Structure of surface​ Materials​ Decoration/Ornaments​ 17 Design law: Registration and rights Options for Registration​ National design: each state separately​ European Union design: protection covers all member states​ Exclusive rights >> ban third parties from:​ Using​ Manufacturing​ Offering​ Putting on the market​ Importing/Exporting​ 18  Overview of differences TRADEMARK​ DESIGN​ UTILITY MODEL​ PATENT​ Most suitable for Names, logos Designs, forms​ Technical inventions​ Technical inventions Term of protection​ indefinite​ 25 years​ 10 years​ 20 years Duration of application​ 2-6 months 2-6 months 9-13 months​ 1-3 years Scope of protection **​ *​ ****​ ****​ Impact on the market​ ****​ ***​ **​ *​ Impact on competitors​ *​ **​ ***​ ****​ Strategic importance Long protection for Effective, fast Fast protection of Profound, examined descriptive signs​ protection of forms​ inventions, less legal protection of certainty​ inventions ​ Cost *​ *​ ***​ ***​ 19 Copyright law Work in certain areas are protected as intellectual creations: Austria: literature, sound art, visual arts and cinematography Germany: literature, science and art “work”: Individual intellectual achievement (“height of work”) Personal touch Distinctiveness by the way of the used means of creation Utilization of the creative possibilities Assessment on a case-by-case basis Not protectable: style, manner, technique, formats, concepts, mathematical formulas 20 Copyright law: Types of works Literature Musical works Visual arts Cinematographic works Photography – work of visual art „offensive works“ are protected by copyright as well 21 Copyright law: Authors principle Author of a work is the person, who created it​ Copyright immediately occurs with the creation of a work​ No registration/application necessary​ Natural persons only​ Distinction from mere assistance is difficult​ Work for hire​: Ordering party is not creator; no statutory transfer of ownership Examples: Advertising slogan: creator is not the company which advertises, but the physical person who created the slogan​ Software: creator is not the company, but actual programmer​ Assistance: research assistants, who collect material, carry out trials, make corrections no independent scientific work – merely execution​ 22 „Monkey selfie“ – who is the author of this picture? Group exercise (4-5 people, 5 min) Present your findings (1 min) 23 Copyright: Joint creatorship Several persons create a work​ Result of the creation is an inseparable unit​ Copyright for all creators jointly​ Problem: ​ Attribution of contribution​ Exploitation and alteration only with approval of all creators​ IMPORTANT: contractual provisions​ 24 Copyright law: Term of protection Starts with creation of the work​ Ends 70 years after creator's death​ End of joint creatorship: 70 years after death of the last living joint creator​ Anonymous/pseudonymous works: 70 years after creation of the work​ Special terms: Up to 50 years after the first publication of ancillary copyrights Up to 15 years after the last modification for databases 10 years for images 25 Copyright law: Scope of protection Exclusive rights​ Personality rights of the creator​ Adaption rights​ Ancillary right​ Other rights (especially protection of the image)​ “free re-creation” Collecting societies (“Verwertungsgesellschaften”): Austria: AKM, Literar Mechana Germany: GEMA 26 Copyright law: Exclusive rights Right of reproduction​ Right of distribution​ Right of public communication​ Right of making available​ Also​ Rental and lending​ Right of broadcasting ​ Right of recitation, performance and presentation​ 27 Copyright law: Principal of exhaustion Expiry of the exclusive rights​ Putting on the market within the EEA​ Transfer of the power of disposition to third parties ​ From right holder or with his consent​ Makes parallel imports possible​ Does not apply to imports from third countries​ Right holder's right of control ends with initial putting into circulation of the specific work with his permission​ 28 Copyright law: Right of reproduction („copyright“) Central provision​ Very broad in scope – any reproduction covered​ Regardless of type of devices and methods used​ Even parts of the original​ Also copies in altered form​ Two cases are explicitly statutorily regulated:​ Recording of recitations or performances​ Execution of a work of fine arts based on plans of the author (eg architect)​ 29 Copyright law: Right of distribution Ties in with the tangible concept of work ​ Making available to the public is necessary​ BUT: Principle of exhaustion​ Offering for sale ​ Putting into circulation​ Power of disposition over a copy​ Every construct possible – sale, gift, renting, lending no transfer or ownership necessary​ 30 Copyright law: Right of public communication Offering for interactive access​ Area of application: internet​ Concept of "public": do not have to be present at the same place at the same time​ eg File-Sharing, Podcasts ​ 31 Copyright law: Personality rights of the author Protect the intellectual connection between a work and its author​ Not transferable​ Not waivable in total​ Protection of creatorship​ Credit as author​ Creator decides, if and with which designation the work shall be labelled– pseudonym also possible​ Adaptions/reproductions must not appear as originals​ 32 Copyright law: Right of adaption Adaption​ Original remains intact in its character​ Reworking, dramatization, film versions, translations​ Consent of the creator of the original necessary​ Free use​ Independent work – individual new creation​ Software-Directive: "Bug fixing" of software is free use​ Guideline: "the more individual the original, the less it will fade compared to the new creation" and vice versa​ No consent necessary​ 33 Copyright law: Licensing Most important instrument for economic exploitation​ License fee​ Permission to use​ Certain or all types of exploitation​ Right to use​ Exclusive right of use​ Restriction in terms of subject matter, place and time​ Reference to future types of use​ 34 Copyright law: Permission and right to use Permission to use Right to use Permission to use is the right to use the work like the Exclusive and absolute right to use​ author​ Towards anyone (also the author)​ Certain or all types of use​ Right to sue​ Only obligatory right vis-à-vis the author​ Limited or unlimited​ No direct claims (no right to sue)​ Adaptation right usually not included​ Adaptation right usually not included​ Burden of proof lies with alleged beneficiaries​ Example: ”X grants Y a non-exclusive, territorially and temporally unlimited and gratuitous right to use this work for exploitation in any known and future known manner, in particular to reproduce it in the context of use, to distribute wirelessly or send by wire and perform as well as to provide (§ 18a UrhG)"​ 35 Copyright law: Free use Exceptions to the exclusive rights​ Product of the social commitment of copyright law​ Interpreted rather narrowly in case of doubt​ Economic value must not be undermined​ No subjective right to exercise (copy protection permitted)​ User has to bear burden of proof​ 36 Copyright law: Reproduction for personal/private use Reproduction for personal use Reproduction for private use Anyone (natural and legal persons)​ Only individuals (natural persons)​ Individual copies on paper or similar medium​ No commercial purposes > professional use excluded​ "Personal use"​ Reproduction on any material​ Personal professional use also covered​ Compensation of the right holder is statutorily provided​ Copy may be passed on​ Computer programs exempted​ Must not be made available to the public​ 37 Copyright law: Right to quote Quotation = word for word adoption of someone else's work fragment in an unchanged way​ Recognizability: Source must be pointed out in a direct connection to the quotation, otherwise plagiarism​ Quotation does not have to be in the original language, translations are permitted​ >> Guarantees the freedom of expression​ 38 Copyright law: Text and data mining Text and data mining: automated evaluation to gain information on patterns, trends, correlations etc Reproduce someone else's work for text and data mining for personal use​ Not if the reproduction is explicitly forbidden​ For research organizations if lawful access to the work itself​ research organizations: not for-profit or profit-oriented but in the public interest​ 39 Copyright law: Enforcement Omission​ Most important claim​ Defense against future infringements​ Removal​ Publication of judgement: Information for the public​ Damages: Difficult to prove – rare in practice​ Claim for the double adequate remuneration​ Criminal law: Sentence up to six months (up to two years if committed professionally)​ 40 Copyright law: Computer programs Literary work​ Definition "Computer program":​ Not legally regulated​ Broad, technological understanding​ Point of access: The established source code is protected as text ​ Protectable is just an original creation​ Exemptions are: ideas, principles, program logic, abstracted program functionality, algorithms​ User surface is not protectable as a computer program​ Unique design necessary​ 41 Copyright law: Principal of exhaustion in „used“ software Applicability to software?​ Offline-purchase​ Asserting rights​ Special conditions (volume licenses) ​ Online-purchase​ No individual workpiece​ Reproduction not exhausted​ 42 Copyright law: Principal of exhaustion in „used“ software ECJ 3.7.2012, C-128/11 ("Oracle / UsedSoft")​ Exhaustion of the right of distribution of digital work copies​ UsedSoft decision does not conclusively resolve all questions regarding used software, but is rather the first fundamental decision on this matter​ Recent development: Changing of the licensing model through software producer (restricted by time, cloud services)​ ECJ 19.12.2019, C-263/18 ("Tom Kabinet")​ Does not apply to other digital goods such as E-Books​ 43 Copyright law: Computer programs Exemptions for reproduction for personal/private use Computer programs are explicitly exempted​ Reproduction and adaption for intended use by the entitled person is permitted​ Permitted​ Backup copies (insofar as necessary for the use)​ Observe/study/test the program in order to determine underlying ideas and principles​ Decompiling – interoperability necessary​ 44 Copyright law: Open source software Open-source software: the code is (publicly) accessible​ Open-source licenses build on copyright law​ Four principles of the Free Software Foundation (FSF):​ The freedom to run the program as you wish, for any purpose (freedom 0).​ The freedom to study how the program works and change it so it does your computing as you wish (freedom 1).​ The freedom to redistribute copies so you can help your neighbor (freedom 2).​ The freedom to distribute copies of your modified versions to others (freedom 3).​ 45 Copyright law: Open source licenses Many different types​ Copyleft licenses​ Programmer is still creator​ Licensee has a gratuitous, nonexclusive right to use​ "Viral" license: each derivative work is "contaminated" by the same license ​ Most famous example is the GPL (GNU General Public License)​ Non-copyleft licenses​ Derivative work does not have to use the same license​ Eg BSD-License​ 46 Copyright law: Reasons for/against open-source licenses Advantages:​ Disadvantages:​ Open collaboration: wide-ranging license to encourage No licensing fees​ the community to prepare and advance the software​ Competitors might gain insight/knowledge/advantages​ Allows for open innovation​ Can sets standards​ 47 Copyright law: Examples of open source software Linux Kernel and Linux based operating systems Eg Android, Red Hat, Ubuntu​ Web browsers:​ Eg Chromium (open source part of Chrome) and Firefox​ Software for software development Eg Git, IntelliJ IDEA, Eclipse Webservers and software for providing websites Eg Apache HTTP Server, MySQL, Node.js​ 48 Copyright law: Creative Commons licenses Extend the idea of open-source software to other areas: music, photos, videos, texts etc Six different licenses: (listed from most to least permissive)​ https://creativecommons.org/wp- content/uploads/2019/11/cc_license_spectrum- 633x1024.png 49 What types of IP infringements in the Internet can you think of? Group exercise (4-5 people, 5 min) Present your findings (1 min) 50 Enforcement of IP on the Internet "Traditional" infringements, eg:​ Selling of counterfeited products on ecommerce platforms (trademarks, designs, patents)​ "New" infringements, eg:​ "Cracked" software (copyright)​ Illegal download/streaming of movies, songs, tv-shows etc (copyright)​ Use of promotional material of original seller/producer (copyright, trademarks)​ The focus is on copyright​! 51 Enforcement: Counterfeited products on ecommerce platforms Problem: find the infringing products​ Various legal possibilities: Letters from attorneys to the platform​ Cease and desist letters with threat of a lawsuit​ Platforms offer their own channels​ Designated forms to send per email​ Online forms​ Usually successful​ 52 Enforcement: Blocking of access to websites Website with copyright infringing material​ Usually domains and servers in third countries >> enforcement is difficult​ Local enforcement possible? >> Injunctions against internet service providers (ISPs) and host providers in Austria​ Legal basis: Sec. 81 para 1a Austrian Copyright-Act​ Only for structurally copyright infringing websites​ Systematic and regular violations of copyrights​ 53 Enforcement: Blocking of access to websites Problem: over-blocking​ Fundamental rights, in particular right to information​ Usually only domain blocking and not IP blocking >> less intrusive​ Over-blocking happens, eg: https://www.derstandard.at/story/2000138619757/ueberzogene- netzsperre-sorgt-fuer-probleme-im-oesterreichischen-internet ​ Austria: list of blocked websites​ https://www.rtr.at/TKP/was_wir_tun/telekommunikation/weitere- regulierungsthemen/netzneutralitaet/Blockings.en.html Nowadays also due to sanctions against Russia (Russian media)​ 54 Enforcement: Upload filters Huge political debates around the EU Digital Single Market Copyright Directive​ Filtering provision in Art 17​ Copyrighted material is made available to the public through internet platforms​ Liability of the platforms for copyright infringements?​ Problem: differentiation between free use and infringements​ Algorithms are not good enough to achieve this (yet)​ 55 Enforcement: Upload filters Art 17: service providers need to obtain an authorization from the rightholders, eg a licensing agreement​ If no authorization is granted, service providers shall be liable for copyright infringements unless they have​ made best efforts to obtain an authorization,​ made best efforts to ensure the unavailability of specific works for which the rightholders have provided the relevant and necessary information​ take down infringing content​ CJEU (2022): interpretation of Art 17​ Filtering provisions are mere obligations of best effort​ Obligation of the platforms not to prevent the availability of lawful uploads is an obligation of result >> takes precedence 56  Questions? 10.10.2024 Fußzeile | Titel der Präsentation 57 Repetition questions Which statements regarding patent law and software are correct? A: Though software patents are not accepted in the EU, software can be protected by copyrights. B: The invention concept has been accepted by the European Court of Justice, but not by the Austrian Patent Court. C: A method may be patented as a computer program, if it is technical. D: Software patents are accepted worldwide. 58 Repetition questions Complete the sentence: Trademarks … A: … protect goods in case of an identity of products. B: … can be for example words, sounds, colors or designs. C: … have to be registered with the Patent office or EUIPO or WIPO in order to be protected. D: … are protected forever after their registration. 59 Repetition questions What characterizes a piece of „work“? A: Any natural person can be author of a work. B: A work does not have to be distinctive by the way of the used means of creation, a personal touch is enough. C: In case of doubt, a court decides if a work is protected under copyright law or not. D: Examples for works are literature, movies, styles and painted pictures. 60 Repetition questions Which are exclusive rights under the Austrian Copyright Act? A: Right of reproduction B: Right of broadcasting C: Right of distribution D: Right of non-repudiation 61 Repetition questions Which statements regarding the protection of software as work are false? A: Software is protected under patent law, but not under copyright law. B: Software is protected as literary work. C: The Austrian Copyright Act includes a definition for the term „software“. D: The protection of software under the Austrian Copyright Act also includes the protection of program logic, algorithms and the user surface. 63 Repetition questions What are the advantages of open-source licences? A: Open-source licences allow for open innovation. B: Open-source software may set standards C: The open collaboration encourages to advance the software. D: Competitors can share insights and knowledge. 64 Repetition questions Give some examples for copyright infringements on the internet! A: Selling products that violate trademarks. B: Illegal streaming of movies. C: Violation of privacy rights. D: „Cracked“ software. 65