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Information Technology and Ethics/Intellectual Property

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The latest reviewed version was checked on 18 April 2024. There is 1 pending change awaiting review.

Intellectual property (IP) is defined by the World Intellectual Property Organization (WIPO) as:

“ creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. The owner of intellectual property has monopoly of its use. Intellectual property is protected by laws, including patents, copyright, trademarks and trade secret laws.”[1] ”

Intellectual property is defined as any work that is creative and includes inventions, literary works, images, and symbols. With the introduction of the Internet, laws surrounding intellectual properties have changed significantly. The three types of laws that protect intellectual property are copyrights, trademarks, and patents.

Unlike conventional property, like physical objects or land, intellectual property is often intangible because it concerns creations of the mind.[2] But the arguments for the validity of intellectual property rights are the similar to those for private property. There are three main arguments in favor of the right to own property. In the natural rights argument, John Locke argues that a person owns the rights to the fruits of his/her labor, specifically because he/she worked for it. The utilitarian argument proposes that society as a whole is better off when we have rights and institutions governing property. Hegel’s personality argument says that property laws frees people to express their unique personalities.[3] Most laws concerning intellectual property exist to promote “progress”.[4] The right to intellectual property motivates innovation and creativity[5]. Intellectual property assets can sometimes be worth more money than physical assets, which means they are worth protecting just like physical assets.[6] Creation of economic growth and wealth is also a reason for the benefit of intellectual property.[7]

Intellectual property has a long history, going back to ancient Greece, where the beginning of trademarks emerged.[8] The precursor to patents dates back to Renaissance Italy but the first patent was not issued until 1449, to John of Utynam.[9] The first American patent was granted in 1790 to Samuel Hopkins.[10] Current American laws protecting intellectual property are rooted in the English Statue of Monopolies (1624), and the statue of Anne (1710).[11] The U.S constitution (1787) contains a copyright provision which deals with intellectual property rights, but the Copyright Act was not implemented until 1790. Several court cases involving copyrights changed how the law was enforced and the Copyright Act was revised in 1831, 1870, 1909 and 1976. For a long time, the law governing copyright dealt with printed material, but with the emergence of software programming, the Copyright Act had to be amended on several occasions. The invention of numerous new technologies and the creation of the Internet and the World Wide Web lead to novel intellectual property issues. As a result, the laws governing intellectual property had to change.[12]

Copyrights

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Page 37 Digest of United States automobile patents from 1789 to July 1, 1899

Article I section 8 clause 8 of the United States Constitution empowers Congress;

“ ...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. ”
Green copyright

Software wasn’t considered intellectual property until 1960, and only around that time the first arguments for having software eligible for copyright protection were discussed. Copyright law was modified in 1976 to satisfy the requirements necessary to make software eligible for copyright protection. It added programs, computers, and databases that “exhibit authorship” to the list of the works that are considered literary works. However, the modified version was still lacking clear requirements. Eventually, the Copyright Act was modified again in 1980 to satisfy the requirements for software as intellectual property. This is how a computer program is defined in the Copyright Law:[13]

“ A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” ”

The copyright itself is a legal form of protection that is given to the author (could be an organization, individual, and group of individuals). In order to meet the requirements for copyright protection, the authors of the software have to prove that the program contains an original expression of ideas. Ideas themselves could not be a subject to copyright protection. Copyright gives the author, or the owner of the subject exclusive right to:[14]

  • Copy work
  • Prepare derivative works based on the original work
  • Distribute copies of the work in the public place, or transfer ownership by rental, lease, and land
  • Perform the work publicly
  • Display the work publicly

In order to prove the violation of the exclusive right provided by copyright the author must prove the ownership first. Due to its unique nature where there are just lines of code and no definite medium, it is hard to determine what would be the object of protection. In the case of software, the program’s code can take any of the following forms: source code, object code, and executable code. Because of this, there are different types of software licenses that determine the nature of the software, and thus determine the type of copyright law that protects each specific type of software.

Commercial Software requires payment before the user can download and use the software. With the purchase of the commercial software the user is able to use all the software’s features with no time limit. Commercial software typically does not allow source code to be modified, and usually restrict access to the source code altogether.[15]

Shareware is free to use, but limits the amount of time the program’s features are available to the user. As the allowed free time period expires, the user must purchase the software in order to continue to use the product.

Freeware is software that is is allowed to be shared for no cost, but not allowed to be modified.

Free Software – Free Software Foundation defines Free Software as software that “the users have the freedom to run, copy, distribute, study, change and improve”.[16]

Open Source – this type of software always gets confused with free software, and freeware. Software has to comply with specific criteria in order to be considered open source. According to Open Source Initiatives, open source software

  1. Has to be distributed freely
  2. Source code has to be included, and distribution in compiled form must also be allowed
  3. Software must allow modifications and derived works, and if used, must be distributed on the same terms
  4. Integrity of the author’s code should not be compromised. If the code is modified it should only be distributed further using a different name.
  5. The license can’t discriminate against any individual, or group of individuals
  6. The license cannot restrict the field that the software will be used in, nor can it restrict the software from being used for commercial purposes.
  7. The rights that are attached to the software should apply to all who received the software without any additional license from the party the software was received from.
  8. License must not be specific to a product
  9. The license cannot restrict the use of any other software using the same license
  10. License must be technology neutral meaning that no technology can dictate the style or interface of the software[17]

Creative Commons is non-profit organization that facilitates sharing creativity and knowledge by providing free legal tools. They offer free and easy to use copyright licenses that offer flexible ways to share creative work on the conditions that authors are going to choose. [18]

Public Domain Software is the software that is not a subject if copyright. This type of software is freely available through public domain, and can be used without any restrictions.[19]

When discussing software protection it is important to underline the fact that software can be protected by both copyright and patent regulations.

Copyright laws had to be changed to include software upon the creation of the Internet. This resulted in the categorization of software into five different types which are: commercial software, shareware, freeware, free software, and open-source software. Commercial software requires payment and restricts access to source code. Shareware software is for a limited period of time and then requires purchase of the software. Freeware software can be shared, but not modified. Free software can be ran, distributed, and improved freely. Open-source software has to comply with open-source software criteria to be considered open-source. Some of these criteria are that it has to be distributed freely, include all source code, and must allow modifications.

Patents

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Patents are protection for any invention whether it be a product or process in the field of technology. Patents not only prevent independent creation but also copying. If two people invent the same item, the first person to file the patent has exclusive rights to the product, while the other person must ask the patent holder for permission to use the original patent. Patent infringement is the violation of the rights secured by the owner of a patent, when someone makes an unauthorized use of anthers patent. The U.S. Patent and Trademark Office (USPTO) issues several different types of patent documents offering different kinds of protection and covering different types of subject matter[20]

Utility Patent: Issued for the innovation of another and valuable process, machine, production, or arrangement of matter, or another and helpful change thereof, it for the most part allows its proprietor to bar others from making, utilizing, or offering the innovation for a time of up to 20 years after the date of the patent application document. Roughly 90% of the patent archives issued by the USPTO as of late have been utility patents, moreover alluded to as "patents for creation”.

Design Patent: Issued for a novel, unique, and decorative manufactured product design. A design patent grants its proprietor the rights to produce, utilize or sell the design, while preventing others from doing the same. Design patents issued from applications documented on or after May 13, 2015 are valid for fifteen years from the date the patent was granted. Patents whose applications were submitted before May 13, 2015 are valid for fourteen years from the date the patent was granted. Maintenance fees are not required for design patents.

Reissue Patent: Issued to correct an error in an utility, design, or plant patent that has was previously issued. A reissue patent does not change the length of time for protection in the original patent. The extent to which the patent offers protection can change as a result of the reissue patent though.

Defensive Publication (DEF):Issued as an alternative to common design, utility or plant patent, it means less protection. It is aimed at prohibiting others from obtaining a patent for a design, invention or plant. The Defensive Publication was replaced by the Statutory Invention Registration in 1985-86.

Statutory Invention Registration (SIR): Offers similar protection as the Defensive Invention Registration used to offer. Please note that the America Invents Act (AIA), was signed in to low in 2011, and /// repealed provisions pertaining to statutory invention registrations and the issue of these documents will be discontinued.///

Patent law requires that inventions satisfy three conditions: (i) usefulness, (ii) novelty, and (iii) nonobviousness[21]

Usefulness:: What does useful mean? The patent law indicates that developments must be useful, which implies have a valuable reason. Being valuable additionally incorporates operativeness, implying that an innovation must work or perform its proposed reason. It ought to be noticed that laws of nature, physical marvels and theoretical thoughts are not patentable regardless of how helpful they are. You can't patent a thought or recommendation for a new process, machine, manufacture, etc. You can just patent the genuine development and you should furnish the USPTO with a complete portrayal of the real working innovation.

Novelty: All together for an invention to be patentable it must be new as characterized by patent law. An invention can't be patented if The invention was known or utilized by others as a part of the United States, or patented or portrayed in a printed publication in the United States or an outside nation, before the present candidate petitioned for his or her patent. Another person has made the same invention as you did. The invention was patented or portrayed in a printed publication in this or a remote nation or in broad daylight use or marked down in this nation over one year preceding the application for patent in the United States. You or another person uncovered your invention over a year prior to people in general.

Nonobviousness: Even if you don't find the prior art to prove it you will not get a patent if your invention is not different enough from similar inventions that are already out there. A patent maybe refused if the differences between your invention and another invention are too obvious. Your invention must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to your invention. For example, the substitution of one material for another, or changes in size, are ordinarily not patentable. You can't paint it red and make it twice as big and expect a patent. Another example of "nonobvious to a person having ordinary skill in the area of technology related to your invention" could be the following. An electronics engineer looks at a circuit board and observes that it is just like another circuit board except that a few parts are substituted. Someone who is not familiar with circuit boards may not understand that the two boards are very similar, however, someone with training thinks that it is obvious

Software Patents: According to the Software Patent Institute, thousands of software patents are issued every year. However, the ongoing debate over whether and under what circumstances software should be patented often presents a dilemma for individuals and companies engaged in software development. In particular, it can be difficult to determine how best to protect computer software in ways that will prevent competitors from making, using, or selling similar programs that perform the same functions.

The United States Patent and Trademark Office (USPTO) has issued guidelines for the examination of computer related inventions. These guidelines apply a series of tests to determine whether an invention qualifies for the strong protection of a patent. While these guidelines do not carry the weight of law, they do show that some software is patentable.

Berne Convention: Under the Berne Convention, copyrights are automatically provided under U.S. law to the authors of “original works,” including literary, dramatic, musical, artistic, architectural and other intellectual works.[22] Copyright assurance applies naturally when a work is made and "fixed in tangible form", for example, on a computer disk or hard drive. In addition, this insurance applies regardless of whether the work is formally enrolled with the USPTO. Copyright laws give unique creators or specialists the privilege to reject others from duplicating their work or asserting it as their own. It stipends them elite rights over the proliferation and readiness of subsidiary fills in and also the dispersion, publication or open showcase of their work. While formally enlisting a copyright is not required to assert these securities, it is required to get harms in suit relating to infringement. Likewise, it is basic to note that copyright does not secure actualities, thoughts, frameworks, or techniques for operation; it just ensures the way these things are communicated. At the end of the day, it won't keep a contender from making a project that uses the same thoughts displayed in another way.

Patents protect the exclusive rights to an invention. After the introduction of the internet software, patents became very popular. There are thousands of patents issued for softwares each year. However, utility patents are the most common type of patents. These patents are referred to as “patents for creation”. This means that these types of patents protect the creation of an invention. For example, if a new type of circuit receives a utility patent, that circuit cannot be created by another individual or company without the permission of the owner of the patent.

Trademarks

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A trademark is a recognizable symbol, word, phrase, logo, design, or a combination of these things registered legally to differentiate one company’s products or services from another’s. The main purpose of a trademark is to make products or services of the particular company recognizable to the public.[23] Consumers often rely on the labels attached to the products or services to examine their quality or source. Trademark holders have the right to prevent others from using an identical or similar mark to their products or services. Trademarks are protected under “common law”, which is governed by state law; and “federal statute”, which is governed by the Lanham Act. Common law protects trademarks from unfair competition, while federal statute protects them from infringement and false designation or misleading representation.[24] Trademarks protect symbols, words, designs, and logos. The three different types of trademarks are: registered trademarks, unregistered trademarks, and unregistered service marks. Trademarks that are registered with United States Patent and Trademark Office are known as registered trademarks and receive strong protection. Unregistered trademarks are limited to geographic areas and are protected without actually being registered. Unregistered trademarks can be identified with a ‘™’ sign next to the intellectual property. Unregistered service marks protect the ability to provide a service. They are identified with a ‘SM’ sign.

There are different types of trademarks: (i) Registered Trademark, (ii) Unregistered Trademark, and (iii) Unregistered Service Mark

Registered Trademark: When a trademark or service mark is registered in United States Patent and Trademark Office (USPTO), it becomes a registered trademark, which is indicated by the ® symbol. Registration provides a strong right to protection nationwide. It gives the owner, such as a company, the immediate right to defend itself against misuse. The trademark remains valid for ten years from the registration date and could be renewed every ten years with additional fees. It expires after ten years from the owner’s death. In some cases, a trademark right can be passed on to another person.

Unregistered Trademark: It is a valid trademark that protects an individual’s rights to specific products without the need for registration. It is used to inform the public of the owner’s right to a specific product, which is indicated by use of the letter ‘TM’. An unregistered trademark is entitled to injunctive relief, corrective advertising, and monetary recovery by the common law and federal statute.[25] The rights of an unregistered trademark owner are limited to the geographic area where it is being used. When a company want to expand, they might use the unregistered trademark in other geographical areas, which causes problems. When an infringement case goes to court, the unregistered trademark user has to prove the uniqueness of his creation.

Unregistered Service Mark: It is a valid trademark that protects an individual’s rights to provide specific services without the need for registration. It is used to inform the public of the owner’s right to provide this service, which is indicated by used of letter ‘SM’. The user of an unregistered service mark is entitled to the same rights as unregistered trademarks. For convenience, the term “trademark” is referred to as both “trademark” and “service mark”.

Trade Secrets

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Trade secrets and any other information with commercial value must be protected against breach of confidence and other dishonest acts.Although they are protected companies must take reasonable steps to protect this information. In order to properly protect trade secrets companies must have a comprehensive strategy for keeping the information secure. Employees may disclose trade secrets or steal them for financial gain. Organizations must educate employees the importance of secrecy.

  1. ↑ What is Intellectual Property? World Intellectual Property Organization. (n.d). Retrieved April 27th, 2016 from http://www.wipo.int/about-ip/en/
  2. ↑ Intangiable Assets and Intellectual Property. American Association of Professors. (n.d). Retrieved April 27, 2016 from http://www.aaup.org/sites/default/files/files/IntangibleAssets.pdf
  3. ↑ Waldron, Jeremy, "Property and Ownership", The Stanford Encyclopedia of Philosophy. Retrieved April 27, 2016 from http://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=property
  4. ↑ US Const. art. I, sec. 8, cl. Retrieved on April 27, 2016 from https://www.law.cornell.edu/constitution/articlei#section8
  5. ↑ Lemley, Mark A., Property, Intellectual Property, and Free Riding. Texas Law Review, Vol. 83, p. 1031, 2005. Retrieved April 27, 2016 from http://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr83&div=30&id=&page=
  6. ↑ The Value of Intellectual Property Assets. World Intellectual Property Organization. (n.d). Retrieved April 27th, 2016 from http://www.wipo.int/sme/en/ip_business/ip_asset/value_ip_assets.htm
  7. ↑ Kamil, Intellectual property : a power tool for economic growth. World Intellectual Property Organization, 2002. Page 1. Retrieved April 27, 2016 from http://www.wipo.int/edocs/pubdocs/en/intproperty/888/wipo_pub_888_1.pdf
  8. ↑ Waldron, Jeremy, "Property and Ownership", The Stanford Encyclopedia of Philosophy, Retrieved April 27, 2016 from http://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=property
  9. ↑ The History of Patents. Intellectual Property and Science. (n.d). Retrieved April 27, 2016 from http://ip-science.thomsonreuters.com/support/patents/patinf/patentfaqs/history/
  10. ↑ First U.S. Patent Issued Today in 1790. United States Patent and Trademark Office. July 31, 2001. Retrieved April 27, 2016 from http://www.uspto.gov/about-us/news-updates/first-us-patent-issued-today-1790
  11. ↑ Waldron, Jeremy, "Property and Ownership", The Stanford Encyclopedia of Philosophy, Retrieved April 27, 2016 from http://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=property
  12. ↑ Copyright Timeline: A History of Copyright in the United States. Association of Research Libraries. (n.d). Retrieved April 27, 2016 from http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#.VyGDaPkrLIV
  13. ↑ Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code. Retrieved April 26, 2016. http://www.copyright.gov/title17/92chap1.html
  14. ↑ Copyright Basics, US Copyright Office www.copyright.gov
  15. ↑ Christensson, P. (2007, December 11). Commercial Software Definition. Retrieved 2016, Apr 24, from http://techterms.com
  16. ↑ What is free software? - GNU Project - Free Software Foundation. (n.d.). Retrieved April 24, 2016, from http://www.gnu.org/philosophy/free-sw.html
  17. ↑ The Open Source Definition. (n.d.). Retrieved April 26, 2016, from https://opensource.org/definition
  18. ↑ About - Creative Commons. (n.d.). Retrieved April 26, 2016, from https://creativecommons.org/about/
  19. ↑ What is public domain software? - Definition from WhatIs.com. (n.d.). Retrieved April 26, 2016, from http://whatis.techtarget.com/definition/public-domain-software
  20. ↑ U.S Patents and Trademark office, Patent Technology Monitoring Team, 2016. http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm
  21. ↑ Tavani, H. T. (2011). Ethics and technology: Controversies, questions, and strategies for ethical computing. Hoboken, NJ: Wiley.
  22. ↑ Berne convention for the protection of literary and artistic works. (1972). Geneva: World Intellectual Property Organization.
  23. ↑ International Trademark Association: Trademark Basics. A Guide for Business. http://www.inta.org/Media/Documents/2012_TMBasicsBusiness.pdf
  24. ↑ David Weild III, Carolyn G. d’Agincourt : Curbing the copyists, 2011. http://www.worldtrademarkreview.com/Magazine/Issue/28/Country-correspondents/United-States-Edwards-Angell-Palmer-Dodge
  25. ↑ David Weild III, Carolyn G. d’Agincourt : Curbing the copyists, 2011. http://www.worldtrademarkreview.com/Magazine/Issue/28/Country-correspondents/United-States-Edwards-Angell-Palmer-Dodge
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