UNIT 3 - Intellectual Property Rights

TABLE OF CONTENTS
CONTENT .......................................................................................................................... 2
1. INTELLECTUAL PROPERTY RIGHTS: A DEFINITION ........................................ 2
1.1 THE WORLD INTELLECTUAL PROPERTY ORGANISATION............................................... 2
1.2 RICHARD SPINELLO, COMPUTER ETHICIST ................................................................... 2
2. SOFTWARE THEFT ..................................................................................................... 2
3. LEGAL PROTECTION FOR INTELLECTUAL PROPERTY ................................... 4
3.1 COPYRIGHTS .............................................................................................................. 4
3.2 PATENTS .................................................................................................................... 5
3.3 TRADEMARKS ............................................................................................................. 6
4. EXTENT AND NATURE OF SOFTWARE PIRACY................................................... 7
5. FAIR USE IN THE ELECTRONIC AGE: SERVING THE PUBLIC INTEREST...... 9
5.1 US COPYRIGHT ACT, 1976 ....................................................................................... 10
6. PRIVATE OWNERSHIP ............................................................................................. 11
6.1 JOHN LOCKE (1632-1704)......................................................................................... 11
6.2 HEGEL (1770-1831).................................................................................................. 11
6.3 DAVID HUME (1711-1776)........................................................................................ 12
6.4 DESERT ARGUMENT ................................................................................................. 12
6.5 THE UTILITARIAN ARGUMENT .................................................................................. 12
6.6 JAMES DELONG ........................................................................................................ 12
6.7 TO WHAT EXTENT IS A NEW IDEA REALLY YOURS ? .................................................. 13
6.8 RICHARD STALLMAN ................................................................................................ 13
6.9 EQUITY AND ACCESS ................................................................................................ 14
7. NATIONAL INFORMATION STRUCTURE ............................................................. 15
8. PROFESSIONAL CONSTRAINTS: ACM CODE OF ETHICS AND
PROFESSIONAL CONDUCT ......................................................................................... 15
9. SUMMARY................................................................................................................... 16

BIS2061 1 Unit 3
Content

1. Intellectual Property Rights: a Definition

1.1 The World Intellectual Property Organisation

According to the United Nations' Patent Office, the World Intellectual Property
Organisation (WIPO), intellectual property is defined as: ‘the rights to, among other
things, the results of intellectual activity in the industrial, scientific, literary or artistic
fields.’

1.2 Richard Spinello, Computer Ethicist

Intellectual property consists of "intellectual objects", such as original musical

compositions, poems novels, inventions, product formulas, etc. Although the use of
physical objects is a zero-sum game in the sense that my use of an object prohibits
others from using it, the same cannot be said of intellectual objects. They are
nonexclusive because many people can use them simultaneously and their use by
some does not preclude their use by others. Furthermore, although the development of
intellectual property objects may be time consuming and costly, the marginal cost of
providing additional access to intellectual property is usually negligible.

All of these characteristics make intellectual property rights more difficult to define
and justly so, especially in open democratic societies that prize free expression and
the free flow of ideas. Assigning property rights to intellectual objects seem
antithetical to many of the goals and traditions of a free society. Thus those who
oppose strong copyright protections often appeal to the First Amendment, along with
the need for maximum vitality in the marketplace of ideas as a rationale for their
opposition.

Like physical property rights, intellectual property rights imply that someone has the
right to certain concepts, knowledge, or information. But there are obvious difficulties
with the notion that one has property rights in an idea because this would mean the
right to exclude others from using and building upon those ideas. This problem is
overcome by making a distinction between the idea and its expression and, in most
cases, granting copyright protection to the expression of an idea but not the idea itself.
(Spinello, 2000)

2. Software Theft
Duncan Langford argues that an area of conflict between different ethical values is the
unauthorised use of computer software, known as bootleg or pirated software.
Stealing maybe morally wrong but, if software suppliers are to be believed, most of us
have used bootleg software at one time or another. Possibly because of the physical
and emotional distance of the application from its real owner, to most users copying
software seldom appears to be stealing. People who would never dream of shoplifting
are prepared to casually borrow and duplicate copyright disks and to photocopy
manuals.

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Software developers
According to Langford the easy stand to make here is to declare all use of
unauthorised software to be unethical. The time and trouble involved in producing
good software is far greater than the average user may appreciate. To take the fruits of
this work, and to pay nothing for it, seems clearly wrong.

If developers do not make a profit, they can no longer develop software, and the
consequences may be unwelcome.

Pirated software supporters

However, the issue is complicated by the attitude of software vendors. Software is
still largely overpriced, perhaps because the sale price does not always bear an
obvious relationship to development costs. The make of your machine will probably
affect the cost of software, a Macintosh user may have to pay more than the user of a
PC, because, generally Macintosh users are perceived as able to afford more. The
situation is complicated further by the escalating cost of software: some commercial
packages for personal computers cost up to a thousand pounds.

If buying a single package involves such high expenditure, users may understandably
want to sample it first. Small groups of users may justify clubbing together to buy a
single copy of software in order to copy out between them. At least, they claim, this
makes one sale for the company; none of us could otherwise afford it.

There is also a curious combination of status and simplicity involved in unauthorised

software. The risk of being caught is low, but there is still a sense of challenge; and,
of course, it is easier and cheaper to use a program from a friend, rather than trudging
down to a computer supplier to buy your own.

Software may therefore be pirated because it is seen as unnecessarily expensive, hard

to evaluate, more troublesome to buy, and perhaps because to do so is seen as
challenging. Using software certainly lowers the cost of personal computing, and
there is little realistic risk of being caught.

Possible answer to this issue

Langford argues that the increasing use of new technology means there may be one
possible answer to this issue. If users wish to try software before buying, suppliers are
beginning to allow this, by publishing test versions of software on CD-ROM, along
with locked versions of the full program. A user may work with a limited version of a
package - typically, the version supplied will not print or save data. If they like it, then
they can contact the supplier, and on payment obtain from them a code number. This
number then permits copying of a full version from the CD. A manual follows in due
course by post.

In addition, Langford states that we must consider shareware - software developed by

individuals and charged at very low rates. Production of shareware is almost
invariably at a loss, and the software author needs all possible encouragement simply
to stay developing and writing. Consider as a priority making certain that any
shareware you use is always paid for.

BIS2061 3 Unit 3
 Now do Review Question 1

3. Legal Protection for Intellectual Property

Intellectual property that is most at risk in cyberspace is usually protected in one of
these three ways: copyrights, patents and trademarks.

3.1 Copyrights

Copyrights are easier to obtain than patents and have a much longer duration, they last
for an author's lifetime plus seventy years. Copyrights protect a literary, musical,
dramatic, artistic, architectural, audio or audio-visual work from being reproduced
without the permission of the copyright holder. To be eligible for copyright
protection, the work in question must be original that is, it must be independently
created by its author. The work must also be embodied in some tangible medium of
expression. Thus a dance itself cannot be copyrighted, but a visual recording of that
dance would be eligible for copyright protection. Also, it is important to underscore
that copyright protection extends to the actual concrete expression of an idea but not
to the idea itself. Copyright laws do not protect ideas, concepts, principles,
algorithms, etc. Copyright law permits fair use of these creative works, which can be
cited for educational or critical purposes. The relevant legislation in the US is the
Copyright Act of 1976. The UK equivalent is the Copyright, Designs and Patents Act,
1988.

The Fair Use Provision

We argued above that the justification of intellectual property rights was difficult
particularly in open democratic societies that prized free expression and the free flow
of ideas. In addition, assigning property rights to intellectual objects seemed to be
disagreeable to many of the goals and traditions of a free society. Hence, in the US
and UK, copyright laws have balanced the intellectual property interests of authors,
publishers and copyright owners with society's need for the free exchange of ideas.

Taken together, fair use and other public rights to utilise copyrighted works, as
confirmed in the US Copyright Act of 1976, constitute indispensable legal doctrines
for promoting the dissemination of knowledge, while ensuring authors, publishers and
copyright owners appropriate protection of their creative works and economic
investments.

The fair use provision of the Copyright Act, 1976 and the fair dealing exception to
infringement in the Copyright, Designs and Patents Act, 1988 allows reproduction
and other uses of copyrighted works under certain conditions for purposes such as
those presented in Table 1.

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 The purposes which allow for reproduction and other uses of copyrighted works
Criticism
Comment
News reporting
Teaching (including multiple copies for classroom use) and
Scholarship or research

Table 1: The purposes which allow for reproduction and other uses of copyrighted
works in the Copyright Act, 1976 and Copyright, Designs and Patents Act, 1988

In addition to the above the Copyright, Designs and Patents Act, 1988 also lists the
following exceptions listed below:
§ Parliamentary and judiciary proceedings
§ Royal commissions and statutory inquiries
§ Material open to public inspection or on official register
§ Material communicated to the Crown in the course of public business
§ Public records and acts done under statutory authority

Spinello (2000) concludes:

"The preservation and continuation of these balanced rights in an electronic
environment as well as in traditional formats are essential to the free flow of
information and to the development of an information infrastructure that serves the
public interest."

3.2 Patents

A patent is generally awarded for a period of seventeen years. The primary candidates
for patent protection are original, useful and non-obvious inventions, such as
machines and processes or compositions of matter such as a new pharmaceutical
product. Formulas, scientific principles, and so on belong in the public domain and
cannot be patented.

There has actually been a prolonged legal debate over whether software programs and
algorithms that they incorporate should be eligible for patent protection. In the 1972
decision: Gottschalk v. Benson, the Supreme Court ruled that such algorithms were
unpatentable. However, this ruling was reversed in the 1981 landmark case Diamond
v. Diehr, when the Court ruled that a patent claim for a process should not be rejected
merely because it includes a mathematical algorithm or computer program. In this
case, the majority opinion of the Court concluded Diehrs process to be nothing more
than a process for moulding rubber products and not an attempt to patent a
mathematical formula. In other words, the process itself (in this case one for curing
rubber) must be original and hence patentable, and if computer calculations are part of
the process, then they are included in the patent protection.

The Patent Act, 1977 requires the following conditions to be satisfied for a patent to
be granted for an invention (Bainbridge, 1999):
1. The invention is new;
2. It involves an inventive step; and
3. It is capable of industrial application.

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The Patent Act 1977 states that anything, which consists of the following, (see Table
2, below) are not inventions for the purposes of the Act (Bainbridge, 1999).

Anything which consists of the following are not inventions for the purposes of the
Act
A discovery, scientific theory or mathematical method
A literary, dramatic, musical or artistic work, or any other aesthetic creation
whatsoever
A scheme, rule or method for performing any mental act, playing a game or doing
business, or a program for a computer
The presentation of information

Table 2: Artefacts consisting of the following are not inventions

Patents have become the subject of some scorn and criticism in certain industries.
Because patents give a monopoly on the product or invention, they enable the
producer to charge high prices and benefit from monopoly rents. Patent protection
seems anti competitive, but without it would companies have the incentive to invest
millions of dollars to invent breakthrough innovations?

3.3 Trademarks

Another type of legal protection for intellectual property objects is the trademark,
which is a word, phrase, or symbol, uniquely identifying a product or a service.
Examples include: the Nike swoosh symbol, names like Pepsi and Dr. Pepper, and
logos such as the famous bitten apple image crafted by Apple Computer. To qualify
as a trademark, the mark or name must be truly distinctive. A trademark is acquired
when someone is either: the first to use the mark publicly or registers it with the
Patent Office.

Trademarks are generally violated in one of two ways: they can be infringed upon, or
they can be diluted. Infringement occurs when someone else uses the trademark in
connection with the sale of its goods or services. The general standard for
infringement is the likelihood of consumer confusion. Dilution is applicable only to
famous trademarks that are distinctive, of long duration, and usually known to the
public through extensive advertising and publicity. Dilution is the result of either
Blurring or Tarnishment. Blurring occurs when the trademark is associated with
dissimilar products. Tarnishment occurs when the mark is portrayed in a negative or
compromising way or associated with products or services of questionable value or
reputation.

Trademark law allows for fair use of trademarks and also for use for purposes of
parody. In fair use situations, the trademark name normally assumes its primary (as
opposed to commercial) meaning; for example, describing a cereal as comprised of all
bran is different from infringing on the Kellogg's brand name All Bran. Parody of
trademarks is permitted as long as it is not closely connected with commercial use.
Making fun of a well-known brand in an artistic work is acceptable.

Now do Review Question 2

BIS2061 6 Unit 3
4. Extent and Nature of Software Piracy
The following is a summary of a talk delivered by Robert Holleyman (President and
Chief Executive Officer, Business Software Alliance, United States), discussing the
extent and nature of software piracy.

Like other criminals, Internet pirates are ingenious and adaptive, constantly finding
new ways to adapt for illicit purposes the very technology that makes electronic
commerce possible. Unfortunately, it is very difficult for legitimate electronic
commerce to develop in a “Wild West” environment where theft of intellectual
property is rampant.

To give you a sobering example, if you do a search on the Internet today, you will
find that over 2 million web pages are offering linking to, or otherwise talking about
“warez”, which is the Internet code word for illegal copies of software. By searching
on the key word “appz” alone, a popular term of art for pirated application programs,
281,900 web pages can be found. These are found all over the world, in countries like
the US where piracy rates are traditionally low, as well as in countries traditionally
known as piracy havens. Virtually every software product now available on the
market can be located on one of these sites. It is virtually impossible to estimate the
monetary damage of this activity, but let me give you some examples:

§ In January 1999, the software industry shut down a major piracy ring based in
Denmark, which was offering counterfeit CD-ROMs of numerous software
products developed by BSA members and many other software developers. By
the time we caught them, they had sold $237 million in counterfeits of BSA
member products alone.
§ We worked with police and the Royal Institute of Technology in Sweden to
monitor and shut down a pirate site run by two students. In the three weeks we
monitored the site, approximately $1.7 million in software was illegally
downloaded.
§ The software industry estimates that if approximately 1,000 users download
software from each such site when it appears and if each such user downloads
approximately $1,000 worth of software, and even if only 1,000 pirate sites world-
wide appeared annually - and there are many, many more - that’s $1 billion
annually in stolen software on the Internet.

Internet piracy is not harmless fun. It threatens all intellectual property based
industries and creative individuals, and clouds the future of legitimate electronic
commerce. The economic impact of this activity extends far beyond the confines of
the software industry:

§ it harms economies world-wide in the form of greatly diminished tax revenues and
§ leads to substantial numbers of lost jobs

Internet piracy is in every respect criminal activity, sometimes engaged in by

misguided techies and students, but increasingly engaged in for substantial profit by
professional thieves.

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Dial-up Bulletin Boards
Dial-up Bulletin Boards presented the first real problem of on-line piracy. These were
individual computers that could be dialled up by modem, where software could be
posted and made available for download to other users of that bulletin board. Often
these sites operated free of charge. Some of these sites required a form of barter, one
first had to post a product for others to take in order to have the right to download
products already posted. The practice continues today on the Internet: pirates
advertise their wares with impunity, and virtually without cost, on newsgroups, IRC
channels and other bulletin board type areas.

World Wide Web

Technology progressed, and the development of the Internet's World Wide Web made
piracy much easier. Web download pages like these make uploading and downloading
pirated software merely a matter of clicking on a few buttons. It is now possible to
order counterfeit products over the Internet from anywhere in the world and
counterfeit products are showing up in the otherwise legitimate world of online
auction sites.

Hacker sites offer serial numbers, access codes and software program “patches” that
bypass or circumvent encryption or other technical protections that the copyright
owner may have applied to its products. Using a search engine, and searching on the
key word “crackz”, we recently found 368,010 web pages which make available such
“patches”, many of which are specifically designed to defeat these technological
protection measures.

Since many pirates’goal is to make money, those offering pirate software often profit
from this activity by providing advertising space to pornographers, even though they
make the software available for free. Today, it is the norm for pirate software web
pages to be crowded with advertising for a variety of forms of pornographic materials.

Pirates intent on making money off illegal sales of software have also discovered web
based auction sites. These are sites that have become a favourite way for people to
find buyers for anything from antiques to a hot concert ticket. Unfortunately, illegal
software has also become a staple of these sites. A BSA member conducted a series of
test purchases on popular auction sites in the US and in Europe in 1998 and 1999 and
found that 60% of the software products purchased were outright counterfeits.

A common practice of pirates using auction sites is to offer an item, for example a
popular suite of software products, for just $10. When the sale is made, the pirate may
simply make a copy of the software, and ship it to the buyer. The pirate gets one
additional benefit from the transaction: he now has the address and e-mail account of
the purchaser, and the pirate can build a list of customers to whom he can directly and
regularly offer illicit products.

(End of summary of Robert Holleyman's talk)

BIS2061 8 Unit 3
5. Fair Use in the Electronic Age: Serving the Public Interest
The purpose of this section is to outline the lawful uses of copyrighted works by
individuals, libraries, and educational institutions in the electronic environment.
Representatives of the following associations advocate the arguments below:
American Association of Law Libraries, American Library Association, Association
of Academic Health Sciences Library Directors, Association of Research Libraries,
Medical Library Association and the Special Libraries Association.

‘The primary objective of copyright is not to reward the labour of authors, but "to
promote the Progress of Science and useful Arts." To this end, copyright assures
authors the right to their original expression, but encourages others to build freely
upon the ideas and information conveyed by a work. This result is neither unfair nor
unfortunate. It is the means by which copyright advances the progress of science and
art.’Justice Sandra Day O'Connor

It follows that the benefits of the new technologies should flow to the public as well
as to copyright proprietors. As more information becomes available only in electronic
formats, the public's legitimate right to use copyrighted material must be protected. In
order for copyright to truly serve its purpose of "promoting progress," the public's
right of fair use must continue in the electronic era, and these lawful uses of
copyrighted works must be allowed without individual transaction fees.

Without infringing copyright, the public has a right to expect:

§ to read, listen to, or view publicly marketed copyrighted material privately, on site
or remotely
§ to browse through publicly marketed copyrighted material
§ to experiment with variations of copyrighted material for fair use purposes, while
preserving the integrity of the original
§ to make or have made for them a first generation copy for personal use of an
article or other small part of a publicly marketed copyrighted work or a work in a
library's collection for such purpose as study, scholarship, or research
§ to make transitory copies if ephemeral or incidental to a lawful use and if retained
only temporarily

Without infringing copyright, non-profit libraries on behalf of their clientele, should

be able:

§ to use electronic technologies to preserve copyrighted materials in their

collections
§ to provide copyrighted materials as part of electronic reserve room service
§ to provide copyrighted materials as part of electronic interlibrary loan service
§ to avoid liability, after posting appropriate copyright notices, for the unsupervised
actions of their users

Users, libraries, and educational institutions have a right to expect:

§ that the terms of licenses will not restrict fair use or other lawful library or
educational uses

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§ that U.S. government works and other public domain materials will be readily
available without restrictions and at a government price not exceeding the
marginal cost of dissemination
§ that rights of use for non-profit education apply in face-to-face teaching and in
transmittal or broadcast to remote locations where educational institutions of the
future must increasingly reach their students

Carefully constructed copyright guidelines and practices have emerged for the print
environment to ensure that there is a balance between the rights of users and those of
authors, publishers, and copyright owners. New understandings, developed by all
stakeholders, will help to ensure that this balance is retained in a rapidly changing
electronic environment.

The above working statement addresses lawful uses of copyrighted works in both the
print and electronic environments.

5.1 US Copyright Act, 1976

The United States copyright law, in conformance with its constitutional foundation,
balances the intellectual property interests of authors, publishers and copyright
owners with society's need for the free exchange of ideas. Taken together, fair use and
other public rights to utilise copyrighted works, as confirmed in the Copyright Act of
1976, constitute indispensable legal doctrines for promoting the dissemination of
knowledge, while ensuring authors, publishers and copyright owners appropriate
protection of their creative works and economic investments.

The fair use provision of the Copyright Act allows reproduction and other uses of
copyrighted works under certain conditions for purposes such as:

§ criticism
§ comment
§ news reporting
§ teaching (including multiple copies for classroom use)
§ scholarship or research

Additional provisions of the law allow uses specifically permitted by Congress to

further educational and library activities. The preservation and continuation of these
balanced rights in an electronic environment as well as in traditional formats are
essential to the free flow of information and to the development of an information
infrastructure that serves the public interest.

Now do Review Question 3

BIS2061 10 Unit 3
6. Private Ownership
Sections 6.1 - 6.6 describe philosophies that serve as moral justification for
intellectual property. Sections 6.7 - 6.9 highlight some of the more interesting and
contentious issues raised by justifying intellectual property.

6.1 John Locke (1632-1704)

Probably the most famous justification of property in general comes from John Locke,
who argued that if one mixed one's labour with something then one had legitimate
claim to it. He did, it must be said, place some restrictions on the right to
appropriation. There had to be, for example, "enough and as good left for others". The
main weakness to this argument is that it is not obvious why we should gain what we
mix our labour with, rather than simply losing our labour. John Weckert (1996)
illustrates this point:
‘If I poured a can of tomato juice, which I owned, into the sea, clearly I would not
thereby own the sea. I would merely become juice less.’

6.2 Hegel (1770-1831)

We are still left with one problem if we want to rely exclusively on a Lockean
justification of intellectual property. What if an idea or mental product involves little
or no labour? Locke's theory does not account for this. However, Hegel offers a
different argument for property.

Hegel argued that property was necessary for the realisation of freedom, as
individuals put their personality into the world. Property enables an individual to put
his [or her] will into something. Following this idea property becomes an expression
of a personality. As human beings freely externalise their will in various things, such
as novels, works of arts, craftsmanship, or even more mundane objects, they create
property to which they are entitled because it is an expression of their being and as
such belongs to them.

These arguments have even more force when applied to intellectual objects, which are
clearly an expression of the author's personality. Surely the author should have the
right to control his or her individual expression, to prevent its misappropriation and
misuse? If I write a poem expressing my innermost feelings, that poem is a part of me
and I should have the right to control its use, that is, the specifics of how it is shared
with others. Thus, even if the creation of intellectual property entails little or no
labour, Hegel's conception of property provides a rationale for why the end product
should belong to its creator. The argument can be summarised as follows:

§ Labourers are entitled to the fruits of their intellectual labour since labour is
disutility
§ Even if labour is not disutility, the labourer deserves this reward since his / her
work adds value, and the incentive to add value is greatly enhanced if some of that
value accrues to the labourer personally
§ If works are created with little or no labour the creator should still have ownership
rights since these works represent an expression of the labourer's personality, and

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 to resign these works completely to the common domain violates the right to
control one's individual expression since the works can be subject to abuse.
(Spinello, 2000)

6.3 David Hume (1711-1776)

Another argument frequently used today is the utilitarian one that private ownership is
necessary as an incentive to work. This dates back to David Hume, who argued that a
person's creations should be owned by him / her to encourage 'useful habits and
accomplishments'. This is the argument most often appealed to in support of
intellectual property and in particular, computer software.

6.4 Desert Argument

A third justification is based on desert (or reward). A producer or creator deserves

reward for his / her production or creation. If I create something I deserve something
in return for my effort. This argument does not imply ownership, but ownership is
often thought to be just reward. In some cases ownership may be a just reward, but it
is not the only one and perhaps not the best one or the one that the creator wants. The
creator may prefer gratitude and /or recognition to ownership.

6.5 The Utilitarian Argument

This position argues that the generation of new ideas is necessary for society to
prosper. It can be time consuming and costly to generate and develop ideas, so there
must be some reward for those who do. If there is not, nobody will bother to create. If
we assume the most important reward is financial, then without financial reward
society's supply of new ideas will dry up. It follows that there must be some system of
copyright and patent regulations, which protect intellectual property. One argument
against copying then (from the perspective of harm) is the harm caused to society at
large if there were no restrictions on the practice.

It could be argued, on the other hand, that if ideas were all in the public domain, and
if anyone could work on and develop anything, regardless of where the idea
originated, we would all be better off because more would be developed. To say that
the source of new and innovative ideas would dry up without copyright and patent
protection to facilitate financial reward is little more than an article of faith. Artists,
academics and scientists frequently create without such reward. Perhaps
acknowledgement is enough. Or perhaps creation is its own reward.

6.6 James DeLong

Why do property rights matter so much? Previous sections have given arguments
based on the principles of justice, economic efficiency, and political freedom to
defend the basic structure of property rights. In a recent book on this topic called
Property Matters (1997), James DeLong puts forward another point of view. He
observes that unless we have clear ownership rights, and unless we pay for the goods

BIS2061 12 Unit 3
(i.e. property) that we need, the result will be greed and chaos. In other words, free
goods become devalued and abused. In his words:
If you must pay, then it forces thought about what is really valuable and what is not. If
the property is free the outcome is obvious: take everything you can get your hands
on.

The abuse of free goods, such as land, air, and water has already led to serious
environmental degradation and a tragedy of the commons. Similar tragedies could
arise if property rights are diluted and ownership shifts too dramatically from the
private to the common. It is somewhat different with intangible intellectual property,
but there are some important analogies: personal data sold and exchanged by data
brokers can also be abused because it has become such a cheap commodity. (Spinello,
2000).

6.7 To What Extent is a New Idea Really Yours?

Another interesting aspect of intellectual property is in what sense, or to what extent,

is an idea solely one individuals? Probably any idea that we have is not ours alone.
Most of my ideas come from someone else. At best, when I am original, I express an
idea in a new way, I see associations between ideas not noticed before, I see the
relevance of an idea in some situation, or I combine ideas in a new way. While these
can all be significant, in all of them anything creative that I achieve is the adding of
something to pre-existing ideas, which I have obtained from others. So to what extent
is the new idea really mine? Given that I contributed only a little, why should I claim
ownership. (Weckert, 1996)

Renowned English scientist and philosopher Sir Isaac Newton wrote in a letter to
Robert Hooke, (referring to his original idea on gravity):
‘If I have seen further it is by standing on the shoulders of giants’

6.8 Richard Stallman

Some argue that given its origins and unusual nature, software should not be eligible
for strong copyright or patent protection. Richard Stallman, President of the Free
Software Foundation, has argued with great insistence that all software should be free.
Stallman claims that ownership of software programs is obstructive and
counterproductive. Hence, software should be in the public domain, freely available to
anyone who wants to use it, modify it, or customise it. He regards software-licensing
fees as an enormous disincentive to use programs because it obviously excludes many
worthy users from enjoying the use of many popular programs. Ownership also
interferes with the evolution and incremental improvement of software products.
According to Stallman,
Software development used to be an evolutionary process, where a person would take
a program and rewrite parts of it for one new feature, and then an other person would
rewrite parts to add another feature; this could continue over a period of twenty years
. . .. The existence of owners prevents this kind of evolution, making it necessary to
start from scratch when developing a program.

BIS2061 13 Unit 3
Stallman concludes that because the ownership of programs is so obstructive and
yields such negative consequences, this practice should be abolished.

During the past few years, there has been a noticeable trend among major software
vendors to make their code more openly accessible on the Internet. In 1998, Netscape
surprised the software industry when it released the source code for its Navigator Web
browser. In addition, the open source code movement has been energised by the
limited success of programs such as PERL and LINUX operating systems, a variation
of UNIX that runs on personal computers. Any user can download LINUX free of
charge. Open source code software gives computer users direct access to the
software's source code, enabling them to fix bugs or develop incremental
enhancements. The premise is that the collective programming wisdom available on
the Internet will help create software that is of better quality than any single individual
or group of individuals working within a company could construct.

Activity 1 – The Cathedral and the Bazaar

Now do Review Question 4

6.9 Equity and Access

By placing a monetary value on intellectual property are we controlling who can use
and enjoy it? This raises the question of equity and access. Brazil leads a group of
third world nations including Thailand and South Korea who opposed US moves
through GATT (the General Agreement on Tariffs and Trade) to extend copyright
protection to US software. The decision was on the grounds that this strengthens the
hands of trans-national computer companies and inhibits countries like Brazil from
building up their own IT industries. In 1988 the US government imposed 100 percent
duties on $39m worth of Brazilian goods. (Forestor and Morrison, 1990)

The counter argument is that there is an assumption in the Anglo-American capitalist

system that by creating powerful incentives for companies and individuals that take
the form of strongly protected monopolies for their innovations, there will be a greater
number of breakthrough inventions that will benefit society in the long run. (Spinello,
2000)

Now do Review Question 5

Activity 2 – A Representative for a Group of Third World Nations at the

GATT Talks

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7. NATIONAL INFORMATION STRUCTURE
In February 1993, President Clinton formed the Information Infrastructure Task Force
(IITF) to articulate and implement the Administration's vision for the National
Information Infrastructure (NII). The IITF is organised into three committees:
(1) The Telecommunications Policy Committee (TPC), which formulates
administration positions on relevant telecommunications issues,
(2) The Committee on Applications and Technology (CAT), co-ordinates
administration efforts to develop, demonstrate and promote applications of
information technologies in key areas,
(3) The Information Policy Committee (IPC) addresses critical information policy
issues of the NII.

The Working Group on Intellectual Property Rights (WGIPR) was established within
the Information Policy Committee (IPC) to examine the intellectual property
implications of the NII and to make recommendations regarding changes to U.S.
intellectual property law and policy. The so-called 'White Paper' embodies the
Working Group's analysis and recommendations.

In the case of the 'White Paper', the Information Policy Committee of the IITF
decided that intellectual property rights were probably a pretty important issue.
Consequently, they formed the Working Group to look at the issue to see if it might
be necessary to change the Copyright Act in order to facilitate the NII. In order to
have well ordered commerce on the NII, you have to have workable and enforceable
rules of the road. For example, Disney will be reluctant to distribute movies on the
NII if copyright laws pertaining to the NII are ambiguous or unenforceable. After
taking a good, long look at the issue, the Working Group decided that the Copyright
Act was a healthy work horse of an Act, and with a few minor adjustments, fully
capable of handling new technologies for at least a couple more years.

The most interesting aspect of the 'White Paper' is that its commerce based position
raises several conflicts with the current state of the Internet, both philosophical and
technological. Philosophically, it comes into conflict with the 'Information wants to be
free' mentality of the Internet. Technologically, it comes into conflict with the fact
that there is no longer any mechanical or cost barrier to reproduction. How these
conflicts play out will determine the look of information delivery.

8. Professional Constraints: ACM Code of Ethics and

Professional Conduct
Commitment to ethical professional conduct is expected of every member of the
Association for Computing Machinery (ACM). The ACM Code of Ethics and
Professional Conduct, consisting of 24 imperatives formulated as statements of
personal responsibility, identifies the elements of such a commitment. It contains
many, but not all, issues professionals are likely to face. Some general moral
imperatives address additional, more specific considerations of professional conduct.
The General Moral Imperative 1.5 states "Honour property rights including

BIS2061 15 Unit 3
copyrights and patent" and General Moral Imperative 1.6 states "Give proper credit
for intellectual property" (see below):

General Moral Imperative 1.5: Honour property rights including copyrights and
patent.
Violation of copyrights, patents, trade secrets and the terms of license agreements is
prohibited by law in most circumstances. Even when software is not so protected,
such violations are contrary to professional behaviour. Copies of software should be
made only with proper authorisation. Unauthorised duplication of materials must not
be condoned.

General Moral Imperative 1.6: Give proper credit for intellectual property.
Computing professionals are obligated to protect the integrity of intellectual property.
Specifically, one must not take credit for other's ideas or work, even in cases where
the work has not been explicitly protected by copyright, patent, etc.

9. Summary
This unit has introduced some of the key legal concepts and ethical and social issues
invoked by intellectual property rights. You have seen how the debate about
intellectual property relates to information systems and the Internet, and why it is
important. You have also been given some philosophical justifications for the idea of
intellectual property, and the counter-arguments. Finally the professional position on
intellectual property has been given.

BIS2061 16 Unit 3