introduction to intellectual property rights (ipr)
DESCRIPTION
A very brief introduction to IPR. Emphasizes the Finnish and European law, but includes also an international perspective.TRANSCRIPT
Introduction to Intellectual Introduction to Intellectual Property RightsProperty Rights
Olli PitkänenD.Sc, LL.M.
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Intellectual Property Rights (IPR)Intellectual Property Rights (IPR)
•It is possible to own physical objects
•One cannot own (have title to) intangible objects like software, information, or multimedia
•They can be objects of intellectual property rights:
– copyright,
– patent,
– trademark,
– design right, etc.
•Most intellectual property rights don’t actually ensure that the right-holder may do something, but the right-holder may forbid others from doing something
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CopyrightCopyright
•A creative work is protected by copyright
– automatic: no need to file applications
– a copyright notice, © -mark are optional
•Originally for literature and arts, but also very important protection of e.g. computer software although patents in general have become more important
•Governed by national laws, EU directives, international treaties
•Copyright does NOT protect facts, ideas, plot, algorithms, etc., but merely the original expression
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Economic RightsEconomic Rights
•exclusive right to gain from the creative work, e.g.– to copy, – to modify
• esp. in the USA, more unclear in Europe,– to sell
• only the first sell, copyright exhaustion,– to display the work
•can be assigned and licensed– e.g. publishing contracts, end-user licenses
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Moral rightsMoral rights
•Protect creative people’s personality and honor
•Different rights in different countries/jurisdictions, e.g.
– right to proclaim or disclaim authorship
• to the extent that is common and good practice
– right to object any modification that would be injurious to author’s reputation
– right to access the work
•Moral rights cannot be assigned at large
•Important also for non-profit creators
•Less important in software
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Limitations to CopyrightLimitations to Copyright
In Europe (esp. Finland):
– Private use (not applicable to SW)
– Citation
– Reprint in press, etc.
In the USA
– Fair use: criticism, news reporting, teaching, research,…
•Limited (!) time period: copyright lasts for the life of the author plus 70 years
– 30 years old person creates a computer program, dies at the age of 80, the copyright lasts 120 years – quite enough!
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Intermediary liabilityIntermediary liability
•Lots of unauthorized copies on the Net
•In principle, operators, service providers and other intermediaries can easily be liable for illegal information
– High risks, prevent useful services
•Legislator has met them halfway: safe-harbor if the intermediary has only a passive role as a mere conduit, a cache, or a hosting service:
– Notice and take down procedure
•Web 2.0: Liability on user generated content?
– Currently mixed court cases on whether service provider is liable on youtube-styled content
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LinkingLinking
•Normal linking does not infringe copyright
– <a href="http://www.aalto.fi”>Aalto</a> is ok
•However, for example, embedded deep linking which circumvents paywalls, ads, or other business models, may violate copyright
– Mixed court cases
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Copyright in Ambient IntelligenceCopyright in Ambient Intelligence
•Future scenarios show that the adaptation of content based on the device properties, context, user preferences, and so on will be very important
•Adaptation is useful and required.
•However, a copyright-owner has sometimes a right to object modifications, e.g. to protect valuable brands.
– E.g. in the USA exclusive right in derivative works
•Also, modification may pre-empt safe harbour rules: operators and other intermediaries become widely liable for illegal content
•Potential conflict balance is needed.
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Legal and technical protectionLegal and technical protection
Legal protection of technical protection
Technical protection
Content: information etc.• copyright• other IPR
Other rights, e.g. privacy, freedom of speech
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Copyright Law Complex?Copyright Law Complex?
3 §
11 § 25 e §
2 § 50 a §
11 a §
16 §
16 a §16 b § 16 c § 22 §
25 d §
13 §
26 §
13 a §
16 d § 16 e §
21 §
25 a §
9 §
25 f §
25 g §
25 h §
26 a §
26 b
26 e §
26 c §26 d §
26 f §
26 g §
26 h §
45 §
46 §
46 a §
6 §
7 §
8 §
12 §
14 §
15 §
17 §
19 §
25 b §
25 c §
25 I §
27 §
28 §
29 §
29 a §
41 §
42 §
47 §
47 a §
48 §
49 §
49 a §
54 §
18 §
25 j §
20 §
25 §
39 §
40 §
40 c §
50 c §
50 b §
50 d §
50 e §
5luku
54 b §56 a §
51 §52 §
53 §
56 e §
56 f §57 §
58 §
60 §
59 §
60 b §
60 c §
60 a §
60 d §
62 §
64 §
64 b §
One single amendment into the Finnish Copyright Act (EV 100/2005 vp) included these internal references
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Database ProtectionDatabase Protection
•Valuable databases that are not creative copyright is not applicable they used to be outlaws
•EU directive + national laws
– nonexistent in the USA and most other countries
•Requires a substantial investment in obtaining, verifying or presenting the contents of the database
•Exclusive right to prevent copying (extraction and/or re-utilization) of the whole or of a substantial part
•It does NOT protect single data items in the DB
•Lasts 15 years from completion or publication
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Patent Patent Copyright Copyright
•Creative work is protected by copyright
– original, expressed, creator’s personality
•Inventions are protected by patents
– in the USA: novel, useful, nonobvious
– in Europe: new, an inventive step, and susceptible of industrial application
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General Criteria for PatentsGeneral Criteria for Patents
•New / novelty
– a new invention, different from prior art
– do not publish your invention before applying for patent!
•Nonobviousness / involve an inventive step
– unexpected or surprising new results
•Usefulness / susceptible of industrial application
– the invention must work,
– e.g a perpetual motion machine would be novel, but it does not work
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Types of Inventions that Do Not Types of Inventions that Do Not Qualify for PatentQualify for Patent
•Mathematical formulas
•Scientific theories
•Laws of nature
•Pure indications of intelligence
•Any invention that is not repeatable, not described in detail
•Note: different rules in different countries
•How about computer programs as such?
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Who is the inventor?Who is the inventor?
•A person who contributes significant input into an invention
•Several people invent in cooperation, they’ll get the patent together
•Several people invent unaware of the others, first of them gets the patent
– in the USA: first to invent
– in the rest of the world: first to file
•In employment, employer may redeem the patent
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Application and PublicityApplication and Publicity
•It is necessary to apply for a patent
•Good application is difficult to prepare
•It’s often a good idea to use a patent attorney or an agent
•Application becomes public competitors can view it
•Sort of trade: the inventor discloses the invention, the society grants a temporal monopoly
– Compare with the copyright system: copyright is achieved automatically, no need to disclose anything
– Sometimes disclosure benefits others, but hardly e.g. in the software industry
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Exclusive RightsExclusive Rights
•Territory: the patent is valid only in the countries where it was granted
– Compare with copyright: automatically worldwide coverage
•Time period: at most 20 years after the application date, annual increasing fees
– Copyright: lifetime + 70 years
•In many countries, covers only professional use
– Copyright: any use
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InternationalityInternationality
•In general, patents are valid only in the countries they were granted
– 12 months period to extend the application to other countries
•Separate application in each country
– PCT and EPC help in filing applications in several countries
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Trade SecretTrade Secret
•Trade, business, and professional secrets and other corresponding business information that is kept secret and the revelation of which would be conductive to causing financial loss.
•Customer lists, price lists, systems of work, computer systems, etc. may be included in trade secret.
•Espionage is illegal.
•Non-Disclosure Agreement (NDA): it is often useful to make an agreement with business partners, customers, etc, that they must not disclose your trade secrets.
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Trade secrets and employmentTrade secrets and employment
•The law stipulates that an employee may not revel trade secrets during the employment.
•Using an NDA, the employer may also restrict the freedom of an employee for six months at most after the end of the employment relationship, or for one year at most in case the employee has got a reasonable compensation for the covenant.
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TrademarkTrademark
•A distinctive word, phrase, logo, graphic symbol, or other device to identify the source of a product or service, brand
– to distinguish a manufacturer’s or merchant’s products from anyone else’s
•In Finland, can be registered or established•In the USA, first use or registration
Hyvä ruoka, parempi mieli
Olli Pitkänen
Trademark classesTrademark classes
•Trademarks are registered in one or several classes
– E.g. Microsoft has registered in Finland its trademark Windows in the following classes:
• 9 (computer programs etc)
• 16 (manuals etc)
• 38 (telecommunications)
• 41 (training services etc)
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Trademarks internationallyTrademarks internationally
•Registered trademarks are valid only nationally
•If a company wishes to protect its brand internationally, it may
– register the trademark in several countries using their national systems
– apply for international registrations under the Madrid Protocol, or
– apply a Community trademark covering the European Union area
•Registering a national trademark is much less expensive and much easier than applying for a patent, but it is advisable to use a trademark agent especially for international applications
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Design RightDesign Right
•New design with individual character
– Does not have to be artistic
– Visible appearance of a product or a part
– Protects against copying
•Needs to be registered nationally
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More informationMore information
•European law (directives etc):
– Eur-Lex http://eur-lex.europa.eu/
•Finnish law:
– Finlex: http://www.finlex.fi/
•Patents, trademarks, design rights, etc:
– http://www.prh.fi/en.html
•General:
– Edilex: http://www.edilex.fi/