Intellectual Property PDF

Chapter 4: Intellectual Property Based on slides prepared by Cyndi Chie, Sarah Frye and Sharon Gray. Fifth edition updated by Timothy Henry Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Q: What is intellectual property? A: I...

Chapter 4: Intellectual Property Based on slides prepared by Cyndi Chie, Sarah Frye and Sharon Gray. Fifth edition updated by Timothy Henry Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Q: What is intellectual property? A: Intellectual property is a product of the mind and human intellect. Copyrights Patents Trademarks  Q: What is the difference between patents, trademark and copyright ? A PATENT gives an inventor the right to exclusive use of their invention for a limited period of time. (20 years) Q: What is the difference between patents, trademark and copyright ? TRADEMARKS protect the unique name, design, logo, symbols or colors used by a business to identify their products or services (Forever). Q: What is the difference between patents, trademark, copyright and trade secret? COPYRIGHT protects creative and artistic expressions for example, books, drawings, paintings, computer programs and music.(Life+70 years) Overview of Intellectual Property Patent Copyright Trademarks Music, art, film, Brand identity, What is Inventions literary works including words protected? and broadcast and logos Up to 20 years Life + 70 years Forever How long? The use of your What does it Your idea being Your work being Trademarks by protect against? used, sold or copied or others without manufactured reproduced your permission Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Q: Why is intellectual property important? A: These products, “ideas” “inventions” and “creations” have commercial value - $ $$.  81.8 61.8 2014 38.2 18.2 Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved  Principles, Laws, and Cases  Reponses to Copyright Infringement  Search Engines and Online Libraries  Free Software  Patents for Inventions in Software Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Article I, Section of the U.S. Constitution gives the power to the Congress “To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive rights to their respective writings and discoveries.” What is Intellectual Property?  The intangible creative work, not its particular physical form  Value of intelligence and artistic work comes from creativity, ideas, research, skills, labor, non- material efforts and attributes the creator provides  Protected by copyright and patent law Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved  U.S copyright Law* (Title 17 of U.S. Code) gives copyright holder following exclusive rights:  To make copies  To produce derivative works, such as translations into other languages or movies based on books  To distribute copies  To perform the work in public (e.g. music, plays)  To display the work in public (e.g. artwork, movies, computer games, video on a Web site) * Enacted by act July 30, 1947 Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Challenges of New Technology  Digital technology and the Internet make copyright infringement easier and cheaper.  New compression technologies make copying large files (e.g. graphics, video and audio files) feasible.  Search engines make finding material easier.  Peer-to-peer technology makes transferring and sharing files easier.  Cloud Computing. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Challenges of New Technology  Broadband connections make transferring files easier and enable streaming video.  Cameras and other equipment enable audience members to record and transmit events.  Scanners allow us to change the media of a copyrighted work, converting printed text, photos, and artwork to electronic form.  New tools allow us to modify graphics, video and audio files to make derivative works. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved  What does it mean to solve the problems of technology’s impact on intellectual property rights?  We should recognize that “the problem” looks different from different perspectives. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved A bit of history  1790 first copyright law passed  1909 Copyright Act of 1909 defined an unauthorized copy as a form that could be seen and read visually  1976 and 1980 copyright law revised to include software and databases that exhibit "authorship" (original expression of ideas), included the "Fair Use Doctrine"  1982 high-volume copying became a felony  1992 making multiple copies for commercial advantage and private gain became a felony Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Fair Use Doctrine  Four factors considered  Purpose and nature of use – commercial or nonprofit purposes  Nature of the copyrighted work(creative or factual)  Amount and significance of portion used  Effect of use on potential market or value of the copyright work (will it reduce sales of work?)  No single factor alone determines  Not all factors given equal weight, varies by circumstance Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved A bit of History  1997 No Electronic Theft Act made it a felony to willfully infringe copyright by reproducing or distributing one or more copies of copyrighted work with a total value of more than $1,000 within a six-month period  1998 Digital Millennium Copyright Act (DMCA) prohibits making, distributing or using tools to circumvent technological copyright protection systems and included protection from some copyright lawsuits for Web sites where users post material  2005 Congress made it a felony to record a movie in a movie theater Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Ethical arguments about copying  Copying or distributing a song or computer program does not decrease the use and enjoyment any other person gets from his or her copy.  But copying can decrease the amount of money that the copyright owner earns. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Ethical arguments about copying  Copying enables users to try out products, benefiting the copyright owner by encouraging sales.  But businesses and organizations should make their own decisions about marketing products, not consumers who want free samples.  Fair use guidelines are useful ethical guidelines.  There are many arguments for and against unauthorized copying. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Discussion Questions  How is intellectual property like physical property?  How is intellectual property different than physical property?  Do you agree with the idea that someone can "own" intellectual property? Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sony v. Universal City Studios (1984)  Supreme Court decided that the makers of a device with legitimate uses should not be penalized because some people may use it to infringe on copyright  Supreme Court decided copying movies for later viewing was fair use  Arguments against fair use  People copied the entire work  Movies are creative, not factual  Why YouTube Can Exist | Sony v. Universal Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sony v. Universal City Studios (1984)  Arguments for fair use  The copy was for private, noncommercial use and generally was not kept after viewing  The movie studios could not demonstrate that they suffered any harm  The studios had received a substantial fee for broadcasting movies on TV, and the fee depends on having a large audience who view for free Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Reverse engineering: game machines  Sega Enterprises Ltd. v. Accolade Inc. (1992)  Atari Games v. Nintendo (1992)  Sony Computer Entertainment, Inc. v. Connectix Corporation (2000)  Courts ruled that reverse engineering does not violate copyright if the intention is to make new creative works (video games), not copy the original work (the game systems) Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sharing music: the Napster case (2001)  Napster's arguments for fair use  The Sony decision allowed for entertainment use to be considered fair use  Did not hurt industry sales because users sampled the music on Napster and bought the CD if they liked it Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sharing music: the Napster case  RIAA's (Recording Industry Association of America) arguments against fair use  "Personal" meant very limited use, not trading with thousands of strangers  Songs and music are creative works and users were copying whole songs  Claimed Napster severely hurt sales  Court ruled sharing music via copied MP3 files violated copyright Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sharing music: the Napster case  Was Napster responsible for the actions of its users?  Napster's arguments  It was the same as a search engine, which is protected under the DMCA  They did not store any of the MP3 files  Their technology had substantial legitimate uses Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  Sharing music: the Napster case  RIAA's arguments  Companies are required to make an effort to prevent copyright violations and Napster did not take sufficient steps  Napster was not a device or new technology and the RIAA was not seeking to ban the technology  Court ruled Napster liable because they had the right and ability to supervise the system, including copyright infringing activities (Inducement: distribute device or SW with the intent of promoting its use to infringe copyright) Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  File sharing: MGM v. Grokster (2005)  Grokster, Gnutella, Morpheus, Kazaa, and others provided peer-to-peer (P2P) file sharing services  The companies did not provide a central service or lists of songs  P2P file transfer programs have legitimate uses  Lower Courts ruled that P2P does have legitimate uses  Supreme Court ruled that intellectual property owners could sue the companies for encouraging copyright infringement Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Significant Cases  “Look and feel”(user interface)  Refers to features such as pull-down menus, windows, icons, and finger movements and specific ways they are used to select or initiate actions (method of operation).  Reflects major creative effort by programmers.  Cases: 1- Lotus v. Paperback Software and Mosaic(1987) 2- Xerox v. Apple (1989) 3- Apple Computer, Inc. v. Microsoft Corp. (1994) 4- Oracle v. Google (2016) The Xerox Thieves Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Discussion Question  What do you think the impact would be on creative industries, such as music, movies and fiction novels, if copyright laws did not protect intellectual property? Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved  Are copyright laws double edged sword? Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Responses from the Content Industries  Ideas from the software industries  Expiration dates within the software  Dongles (a device that must be plugged into a computer port)  Copy protection that prevents copying  Activation or registration codes  Court orders to shut down Internet bulletin boards and Web sites Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Digital Rights Management (DRM)  Collection of techniques that control uses of intellectual property in digital formats  Includes hardware and software schemes using encryption  The producer of a file has flexibility to specify what a user may do with it  Apple, Microsoft and Sony all use different schemes of DRM Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Responses from the Content Industries  Banning, suing and taxing  Ban or delay technology via lawsuits  CD-recording devices  DVD players  Portable MP3 players  Require that new technology include copyright protections  Tax digital media to compensate the industry for expected losses Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved The Digital Millennium Copyright Act (DMCA) 1998  Anti circumvention  Prohibit circumventing technological access controls and copy-prevention systems  Safe harbor  Protect Web sites from lawsuits for copyright infringement by users of site Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Safe Harbor  Industry issues "take down" notices per the DMCA  As long as sites like YouTube and MySpace comply with take down notices they are not in violation  Take down notices may violate fair use, some have been issued against small portions of video being used for educational purposes Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved The DMCA vs. Fair Use, Freedom of Speech, and Innovation  Lawsuits have been filed to ban new technologies  U.S. courts have banned technologies such as DeCSS* even though it has legitimate uses, while courts in other countries have not.  Protesters published the code as part of creative works (in haiku, songs, short movies, a computer game and art)  U.S. courts eventually allowed publishing of DeCSS, but prohibited manufacturers of DVD players from including it in their products *DeCSS was one of the first free computer programs capable of decrypting content on a commercially produced DVD video disc. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Evolving Business Models  Organizations set up to collect and distribute royalty fees (e.g. the Copyright Clearance Center), users don't have to search out individual copyright holders  Sites such as iTunes and the new Napster provide legal means for obtaining inexpensive music and generate revenue for the industry and artists  Revenue sharing allows content-sharing sites to enable the posting of content and share their ad revenues with content owners in compensation Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Evolving Business Models  Cloud storage raises copyright issues.  Is copying legally purchased files to and from the cloud a fair use?  Will the companies operating the cloud services have any responsibility for unauthorized content their customers store and share?  Since copyright holders do not see what is stored, they do not have the option of sending takedown notices. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Evolving Business Models  What does not work  Zediva, a small startup in 2011, bought DVDs and rented the content (not the physical DVD) to customers legally. Court ordered Zediva to shut down.  Pirate Bay  Megaupload Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved International Piracy  Some countries do not recognize or protect intellectual property  Countries that have high piracy rates often do not have a significant software industry  Many countries that have a high amount of piracy are exporting the pirated copies to countries with strict copyright laws  Economic sanctions often penalize legitimate businesses, not those they seek to target Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Search Engines  Caching and displaying small excerpts is fair use  Creating and displaying thumbnail images is fair use  Google negotiated licensing agreements with news services to copy and display headlines, excerpts, and photos.  Trademarked search terms Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Books Online  Project Guttenberg digitizes books in the public domain(https://www.gutenberg.org/)  Microsoft scanned millions of public domain books in University of California's library  Google has scanned millions of books that are in the public domain and that are not; they display only excerpts from those still copyrighted  Some court rulings favor search engines and information access; some favor content producers Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved What is free software?  Free software is an idea advocated and supported by a large, loose-knit group of computer programmers who allow people to copy, use, and modify their software  Free means freedom of use, not necessarily lack of cost  Open source - software distributed or made public in source code (readable and modifiable) Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved GNU project  Began with a UNIX-like operating system, a sophisticated text editor, and many compilers and utilities  Now has hundreds of programs freely available and thousands of software packages available as free software (with modifiable source code)  Developed the concept of copyleft*  *(Copyleft is a type of license that attempts to ensure that the public retains the freedom to use, modify, extend and redistribute a creative work and all derivative works (i.e., works based on or derived from it) rather than to restrict such freedoms) Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Should all software be free?  Would there be sufficient incentives to produce the huge quantity of consumer software available now?  Would the current funding methods for free software be sufficient to support all software development?  Should software be covered under copyright law?  Concepts such as copyleft and the GNU Public License provide alternatives to proprietary software within today's current legal framework Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Patent decisions, confusion, and consequences  Patents protect inventions by giving the inventor a monopoly for a specified time period.  Laws of nature and mathematical formulas cannot be patented.  Obvious inventions or methods cannot be patented. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved A few cases  Paul Allen, co-founder of Microsoft, and e-comm erce and Web-viewing  Apple, Android, and tap-touch screens  IBM , Amazon, and electronic catalogues Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved Patent trolls  Some companies accumulate thousands of technology patents but do not make any products.  They license the patents to others and collect fees. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved To patent or not?  In favor of software patents  Reward inventors for their creative work  Encourage inventors to disclose their inventions so others can build upon them  Encourage innovation Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved To patent or not?  Against software patents  Patents can hinder innovation, rather than encourage it.  Cost of lawyers to research patents and risk of being sued discourage small companies from attempting to develop and market new innovations.  It is difficult to determine what is truly original and distinguish a patentable innovation from one that is not. Copyright © 2018, 2013, 2008 Pearson Education, Inc. All Rights Reserved