Difference between Copyright, Patent and Trademark:

Copyright:

 Protected the original works (arts, writings, books, movies, songs, photographs, and web content)

 An idea itself cannot be copyrighted

 A work must be in a fixed tangible form to be protected

Trademarks

 Protected the names, symbols, or slogans for products or services that you sell

 Brand names (CocaCola) and images, or slogans

o Has unlimited term, but has to renew every year

Patent

 Protects your inventions and design

 Utility Patents
o Machine, processes, or chemical

o For 20 year

 Design Patents

o A new and original design

o For 14 year

 Cannot be renewed

Ownership of physical property was known and simple.

But consider characteristics of digital economy: Production, distribution, ownership

Examples of intellectual property are books, songs, movies, paintings, inventions, chemical formulas,
and computer programs

Have to demonstrate recognized ownership to benefit from intellectual property/products

John locke said:

First, people have a right to property in their own person. Nobody has a right to the person of anybody
else. Second, people have a right to their own labor. The work that people perform should be to their
own benefit. Third, people have a right to those things that they have removed from Nature through
their own labor [9].

We need to extend this to intellectual property but there can be some paradoxes

Constitution give congress power to: “promote the Progress of Science and useful Arts by securing for
limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

If a person has the right to control the distribution and use of a piece of intellectual property, there are
many opportunities for that person to make money.

There are also limits to IP protection, when it is not public and benefits are not for everyone.

there is a tension between the need to reward the creators of intellectual property by giving them
exclusive rights to their ideas and the need to disseminate these ideas as widely as possible.

So Congress granted authors and inventors exclusive rights to their writings and discoveries but only for
a limited period of time. While creators have control over the distribution of their properties, use of the
properties is more expensive, and the creators are rewarded. After properties enter the public domain,
using them becomes less expensive, and everyone has the opportunity to produce derivative works
from them.

Have to find what is a reasonable length of time to grant authors and inventors exclusive rights to their
creative works.

Supreme Court justice Stephen Breyer [13], Kembrew McLeod [14], and Lawrence Lessig [15] have used
“Happy Birthday to You” as evidence that copyright protections are excessive.

music publisher Clayton F. Summy Company (now a subsidiary of Time Warner) copyrighted the song in
1935, and television networks must pay Time Warner to air it. Time Warner collects about $2 million in
royalties each year for public performances of” Happy Birthday to You” [16]. Under the Copyright Term
Extension Act of 1998, the song will remain copyrighted until at least 2030.

But no one has challenged this copyright in court

HOW IP IS PROTECTED

A trade secret is a confidential piece of intellectual property that provides a company with a competitive
advantage. Examples of trade secrets include formulas, processes, proprietary designs, strategic plans,
customer lists, and other collections of information

A famous trade secret is the formula for Coca-Cola syrup. The formula, known inside the company as
“Merchandise 7X,” is locked in a bank vault in Atlanta, Georgia

An advantage of trade secrets is that they do not expire. A company never has to disclose a trade secret.
Coca-Cola has kept its formula secret for more than 100 years.
The value of trade secrets is in their confidentiality. Hence trade secrets are not an appropriate way to
protect many forms of intellectual property

A trademark is a word, symbol, picture, sound, or color used by a business to identify goods. A service
mark is a mark identifying a service [19]. By granting a trademark or service mark, a government gives a
company the right to use it and the right to prevent other companies from using it

Another way companies protect their trademarks is by contacting those who are misusing them. For
example, Adobe has responded to Web posts about “photoshopping images” by posting this follow-up
message: “The Photoshop trademark must never be used as a common verb or as a noun. The
Photoshop trademark should always be capitalized and should never be used in possessive form, or as a
slang term” [20].

A patent is a way the US government provides an inventor with an exclusive right to a piece of
intellectual property. A patent is quite different from a trade secret because a patent is a public
document that provides a detailed description of the invention. The owner of the patent can prevent
others from making, using, or selling the invention for the lifetime of the patent, which is currently 20
years. After the patent expires, anyone has the right to make use of its ideas.

EX: Dr. Edwin Land invented “instant” photography. The company he founded, Polaroid Corporation,
had 10 patents protecting the invention of film that developed in 60 seconds. Polaroid did not license
these patents to other firms, and for many years it was the only company to sell cameras and film
allowing photographs to be developed in a minute. When Kodak introduced its first instant camera in
1976, Polaroid sued Kodak [21]. In 1985 a court ruled that Kodak had infringed on seven of Polaroid’s
original ten patents; six years later Kodak paid Polaroid a $925 million settlement

A copyright is how the US government provides authors with rights to original works that they have
written.

The owner of a copyright has five principal rights:

1. The right to reproduce the copyrighted work

2. The right to distribute copies of the work to the public

3. The right to display copies of the work in public

4. The right to perform the work in public

5. The right to produce new works derived from the copyrighted work

several important industries in the United States, including the movie industry, music industry, software
industry, and book publishing, rely upon copyright law for protection. “Copyright industries” account for
over 6 percent of the United States gross domestic product, with over $900 billion in sales
Corporate Overuse: Privacy also applies to unauthorized copies of legally bought software

Under some circumstances, called fair use, it is legal to reproduce a copyrighted work without the
permission of the copyright holder. Examples of fair use include citing short excerpts from copyrighted
works for the purpose of teaching, scholarship, research, criticism, commentary, and news reporting.

Google books example: A month later a group of five major publishers sued Google for copyright
infringement. The publishers claimed that Google was infringing their rights under the Copyright Act
because Google’s intent was “purely commercial,” and in order to create its database, Google was
systematically copying entire books still protected by copyright [41].

The Digital Millennium Copyright Act (DMCA), passed by Congress in 1998, was the first major revision
of United States copyright law since 1976. The DMCA makes it illegal for consumers to circumvent
encryption schemes placed on digital media, and it is illegal to sell (or even discuss online) a software
program designed to circumvent copy controls

Online service providers that misuse copyrighted materials face severe penalties [49]. That means, for
example, a university that knows students are exchanging MP3 files on the campus network and does
nothing to stop them can be sued

Scripting DVDS is a new restriction on Use

In January 2012, the FBI worked with police in New Zealand and Hong Kong to shut down the
Megaupload cyberlocker and arrest Kim Dotcom and three associates for violating the Pro-IP Act

“a worldwide criminal organization whose members engaged in criminal copyright infringement and
money laundering on a massive scale with estimated harm to copyright holders welling excess of
$500,000,000 and reported income in excess of $175,000,000”

The Copyright Act of 1976 explicitly recognizes that software can be copyrighted.

copyright protects the expression of an idea, not the idea itself, you may be able to copyright your
implementation of a relational database management system, but you cannot copyright the concept of
using relational databases to store information.

Second, copyright usually protects the object (executable) program, not the source program.

violation of copyright law:

1. Copying a program onto a CD to give or sell to someone else

2. Preloading a program onto the hard disk of a computer being sold

3. Distributing a program over the Internet

Since then, hundreds of thousands of software patents have been granted.

Ownership of the Copyright:

 If you create something as employee you are not the "owner" of the copyright unless there is prior
agreement

 You may not hold copyright in something you develop outside of work hours if it is derivative, or
an extension, or based on, what you do at work

 "tele-working" at home… how can you claim something is your own?

Co-owner/author - in absence of an agreement

 No co-owner can exploit the world without the consent of there other

 Each must share 50% (assuming co-workers) of profit

 Best to have agreement!!!

Computer generated content may not be copyrightable because in Canadian law the author must be a
human being.

Software is protected by copyright, but when thinking about it, it is difficult to convince it as a literary
work because its key feature is to be useful or practical rather than being a unique way of expressing
something

Note: ship design does have a separate legal protection.

First sale doctrine (perhaps ) doesn’t apply to licensing .

Open source is an alternative way of distributing software.

Licenses for open-source programs have the following key characteristics (there are others) [125]:

1. There are no restrictions preventing others from selling or giving away the software.

2. The source code to the program must be included in the distribution or easily available by other
means (such as downloadable from the Internet).
3. There are no restrictions preventing people from modifying the source code, and derived works can
be distributed according to the same license terms as the original program.

4. There are no restrictions regarding how people can use the software.

5. These rights apply to everyone receiving redistributions of the software without the need for
additional licensing agreements.

6. The license cannot put restrictions on other software that is part of the same distribution. For
example, a program’s open-source license cannot require all of the other programs on the CD to be
open source.

nonprofit corporation Creative Commons in 2001. Creative Commons provides standard copyright
licenses free of charge.

Every license comes in three forms:

human-readable,

lawyer-readable,

and computer-readable.

With a Creative Commons license, you can retain the copyright while allowing some uses of your
intellectual property under certain circumstances

Which of the following is not a feature of a Creative Commons license?

A. It describes how the work may be used

B. It could describe how the author’s work may be modified

C. It replaces the author’s copyright

D. It could allow for commercial use of the work

Licenses for proprietary software usually forbid you from making copies of the software to give or sell to
someone else. These licenses are legal agreements. If you violate the license, you are breaking the law

Patenting Software
1. Useful
  Inventions should actually woirk and be useful

 Credible

 Specific

 Sustainable

2. Novel (or New)

 Cannot be known or disclosed more than 12 months prior filling the application

 Many countries consider disclosure prior to filling to invalidate a patent

3. Not obvious

 Inventions must exhibit certain degree of inventiveness beyond what would be considered
average in the field

 If an unimaginative, but otherwise highly-skilled technician could have produced

(stumbled upon) the invention then it doesn’t deserve a patent

 "a court must ask whether the improvement is more than the predictable use of prior art
elements to their established functions."

 "When you have invented A+B. A is knows in the prior art, and B is known in the prior art.
Upon looking at A and then looking at B, would someone of skill in the art consider A+B to
be already known? If the answer is yes, then A+B is obvious."

A patent can be challenged even if it was issued by Patent Officer and will be decided by the court.

System Claim: defines a physical thing or apparatus, machine, product, etc.

Method claim: defines a process for performing a task

Patent claim: will often include both - where the method claim defines a way of using the claimed
system

The Patent Act states that scientific principle or abstract theorems are not patentable.

When does an invention involving software and machine and process become more than an abstract
idea?

Two step approach to finding out of something is patentable?

1. Is the claimed invention directed to a abstract idea or natural principle?

2. If it is, determine whether the claimed invention implements the abstract idea inventively or
instead in a merely routine or conventional manner.

The patenting of software is not granted if the patent does not focus overly on a stand-alone algorithm
 For example: data structure wont be patentable on their own, but as apart of a process that
achieves a specific result that whole process might be patentable

In Europe:

Computer-implemented invention: is one which involves the use of a computer, computer

network or other programmable apparatus, where one or more features are realized wholly or
partly means of a computer program.

 A compression encoding scheme is patentable

 An encryption scheme is patentable

TIP 1: Do you really need a patent for your software-

related invention? Think twice before preparing a patent
application.
In many countries, computer programs, whether in source or object code, are protected under
copyright. The major advantage of copyright protection lies in its simplicity.

This means that international copyright protection is automatic - it begins as soon as a

work is created. Also, a copyright owner enjoys a relatively long period of protection,
which lasts, in general, for the life of the author plus 50 or, in certain countries, 70 years
after the author’s death.

In contrast, a patent must be applied for, in principle, in each country in which you seek
patent protection.

compared with copyright protection, the term of protection is much shorter, namely, in general,
20 years from the filing date of the application.

Although copyright protects the “ literal expression” of computer programs, it does not protect
the “ ideas” underlying the computer program, which often have considerable commercial
value.

TIP 2: What do you wish to protect from your

competitors? Identify the core part of your innovation.
TIP 3: Is your innovation patentable? Not all types of
software-related innovation can enjoy patent protection.
TIP 4: Do you need to protect your innovation abroad?
Patentability requirements are not always the same in
each country.
TIP 5: Consult an intellectual property expert who is
familiar with the relevant national law and practice.

PATENT ASSERTIONS

Patent Assertion Entities (PAEs, also known as “patent trolls”) do not play such roles. Instead they focus
on aggressive litigation, using such tactics as: threatening to sue thousands of companies at once,
without specific evidence of infringement against any of them; creating shell companies that make it
difficult for defendants to know who is suing them.

It buys patents from defunct companies or patents that companies no longer want to keep. It does not
hire employees; it does not engage in research; it does not even practice the invention—nor does it ever
intend to practice it

Although PAEs often target major, household-name and deep-pocketed technology companies, they
also target start-ups and small companies. In fact, though the most substantial settlements are often
extracted from large entities, the majority of PAE suits target small and inventor-driven companies

Recent surveys provide evidence for the negative impact of PAE litigation on innovative companies. The
impact on smaller startups is particularly acute. In a recent survey of 223 technology company startups,
40 percent of PAE-targeted companies reported a “significant” operational impact

In September, 2011, President Obama signed into law the Leahy-Smith America Invents Act, historic
patent reform legislation designed to help American entrepreneurs and businesses bring their
inventions to market sooner, creating new businesses and new jobs. The key provisions of the AIA,
which went into full effect in 2012, are helping to improve the patent system for innovators in all fields
by offering a fast-track option for patent processing; taking important steps to reduce the current patent
backlog; and increasing the ability of Americans to protect their intellectual property abroad.

Several provisions of AIA may help address some of the problematic behavior of PAEs by creating new
programs at the Patent and Trademark Office to create alternatives to litigation regarding patent
validity, new methods for post-grant review of issued patents, and major steps to increase patent
quality through clarifying and tightening standards. Nonetheless, the impact of aggressive litigation
tactics by PAEs and others was not widely known during the seven years the AIA was under negotiation,
and as President Obama said, AIA “only went about halfway to where we need to go.”
Weathley article:

DRMS encompass technological means used to identify and to control access to or use of digital data or
hardware.25 DRMS include but are not limited to copy protection and technical protection measures.26
Access to digital content can be restricted by encrypting the information. Once encrypted, the copyright
owner can exercise a large amount of control over how the copyrighted work is used.27 The DRMS
create an issue regarding the use of a copyrighted work that is no longer restricted by a legal framework.
They give copyright owners the ability to define what may and may not be done with a copyrighted work

DRMS can limit uses that are outside a copyright owner’s exclusive rights. For example, United States
law includes the first sale doctrine. Once an individual has purchased a copy of a copyrighted work, he
may then resell the copy to another and the owner of the copyright cannot object. However, if a song in
digital file format is purchased from an online seller, the purchaser may be prevented from selling the
song file, because a potential buyer would not be able to play the song without circumventing the
DRMS.

Q1 • Patent Assertion Entities (“patent trolls”) are firms that do what?

A. Create and sell patents

B. Own patents but do not practice them

C. Own and practice patents

D. Simply file patent applications

Q2 • According to the White House report, what is the prevailing effect of PAE litigation?

A. Creators of IP are being rewarded

B. Small firms are being protected from big business

C. Patent lawyers are loosing money

D. Innovation is held back

Q3 • Which of the following is not a feature of the Leahy-Smith America Invents Act?

A. Full protection of entrepreneurs from PAEs

B. Fast-tracking of patent processing

C. Improved abilities to protect IP abroad

D. Improved patent standards for clarity

Q4 • What is the benefit of a patent vs. copyright with regards to software?

A. Patents protect the underlying idea

B. Patents last longer

C. Patents are easier to obtain

D. Patents apply to source code

Q5 • The “first sale doctrine” states that a person who purchases (but not licenses) a copy of a
copyrighted work may…

A. distribute copies of the purchased work

B. resell a copy of the purchased work

C. resell the purchased work

D. do all of the above

Q6 • Converting a copyrighted work to a different format for personal, private use…

A. is legal in the USA and in the UK

B. is legal in the USA, illegal in the UK

C. is illegal in the USA, legal in the UK

D. is illegal in the USA and in the UK

Legal in UK but not stated in US, probably illegal