INTELLUCTUAL PROPERTY RIGHTS

OVER VIEW
Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic
and commercial. The former is covered by copyright laws, which protect creative works, such as
books, movies, music, paintings, photographs, and software, and give the copyright holder
exclusive right to control reproduction or adaptation of such works for a certain period of time.[3]
The second category is collectively known as "industrial properties", as they are typically created
and used for industrial or commercial purposes. A patent may be granted for a new, useful, and
non-obvious invention and gives the patent holder a right to prevent others from practicing the
invention without a license from the inventor for a certain period of time. A trademark is a distinctive
sign which is used to prevent confusion among products in the marketplace.
An industrial design right protects the form of appearance, style or design of an industrial object
from infringement. A trade secret is an item of non-public information concerning the commercial
practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes
be illegal.
The term intellectual property denotes the specific legal rights described above, and not the
intellectual work itself.

Objectives
. Common types of intellectual property include copyrights, trademarks, patents, industrial design
rights and trade secrets in some jurisdictions.
Although many of the legal principles governing intellectual property have evolved over centuries, it
was not until the 19th century that the term intellectual property began to be used, and, it is said,
not until the late 20th century that it became commonplace in the United States

Economic growth
The legal monopoly granted by IP laws are credited with significant contributions toward economic
growth Economists estimate that two-thirds of the value of large businesses in the U.S. can be
traced to intangible assets. Industries which rely on IP protections are estimated to produce 72
percent more value added per employee than non-IP industries. A joint research project of the
WIPO and the United Nations University measuring the impact of IP systems on six Asian countries
found "a positive correlation between the strengthening of the IP system and subsequent economic
growth."
from direct foreign However, correlation does not necessarily mean causation: given that the patent
holders can freely relocate, the Nash equilibrium predicts they will obviously prefer operating in
countries with strong IP laws. In some of the cases, the economic growth that comes with a
stronger IP system is due to increase in stock capital investment, as was shown for Taiwan after the
1986 reform.

Economics
Intellectual property rights are temporary monopolies enforced by the state regarding use of
expressions and ideas.
Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used
or enjoyed by many people simultaneouslythe use by one person does not exclude use by
another. This is compared to rival goods, such as clothing, which may only be used by one person
at a time. For example, any number of people may make use of a mathematical formula
simultaneously. Some objections to the term intellectual property are based on the argument that
property can only properly be applied to rival goods (or that one cannot "own" property of this sort).

History
Modern usage of the term intellectual property goes back at least as far as 1888 with the founding
in Berne of the Swiss Federal Office for Intellectual Property (the Bureau fdral de la proprit
intellectuelle). When the administrative secretariats established by the Paris Convention (1883) and
the Berne Convention (1886) merged in 1893, they also located in Berne, and also adopted the
term intellectual property in their new combined title, the United International Bureaux for the
Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and
was succeeded in 1967 with the establishment of the World Intellectual Property Organization
(WIPO) by treaty as an agency of the United Nations. According to Lemley, it was only at this point
that the term really began to be used in the United States (which had not been a party to the Berne
Convention),[2] and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.[9]
Stable ownership is the gift of social law, and is given late in the progress of society. It would be
curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be

claimed in exclusive and stable property. If nature has made any one thing less susceptible than all
others of exclusive property, it is the action of the thinking power called an idea, which an individual
may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces
itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every other possesses the whole of it.
He who receives an idea from me, receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me. That ideas should freely spread from
one to another over the globe, for the moral and mutual instruction of man, and improvement of his
condition, seems to have been peculiarly and benevolently designed by nature, when she made
them, like fire, expansible over all space, without lessening their density in any point, and like the
air in which we breathe, move, and have our physical being, incapable of confinement or exclusive
appropriation. Inventions then cannot, in nature, be a subject of property.

Criticism
The term itself
Although the term is in wide use, some critics reject the term intellectual property altogether.
Richard Stallman argues that it "systematically distorts and confuses these issues, and its use was
and is promoted by those who gain from this confusion." He claims that the term "operates as a
catch-all to lump together disparate laws [which] originated separately, evolved differently, cover
different activities, have different rules, and raise different public policy issues. These critics
advocate referring to copyrights, patents and trademarks in the singular and warn against
abstracting disparate laws into a collective term.

INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND COMMUNICATION

TECHNOLOGY AND THE FREEDOM OF KNOWLEDGE
In modern societies the sharing of knowledge in the public domain is challenged by the Internet and
the protection of knowledge through Intellectual Property Rights (IPR). IPR is a core issue at the
virtual workplace of universities. IPR is intertwined with the issue of easy online access. Not only,
has easy online access to valuable knowledge become a precondition for economic success.
Intellectual property protection at the virtual workplace also became a key factor for academic
success. The following analysis identifies some of the IPR barriers to easy, fair and affordable
online knowledge access. This article originated from the European FILTER project, focused on the
different filters changing, blocking and modifying the information and knowledge students are
looking for. FILTER, see www.filternetwork.org with partners in 12 European countries, studies the
filtering of internet content and its consequences for e-learning. Initially a conceptual framework
with
filter
cat!
Egories at six levels was developed and tested in a pilot study. Interviews were conducted with key
persons in seven countries. The conceptual framework was refined and developed according to a
literature review. The study revealed a lot of common problems and strategies as well as cultural
differences in awareness and interpretation of IPR and content filtering online.

Legal Protection of Educational Websites

What are the Intellectual Property Rights of teachers, staff and students who have authored
materials that they make available for others to share via the website? According to Wells (2001)
copyright can potentially be breached through the school website. He gives the example of staff
and pupils producing wonderful artwork which is downloaded elsewhere and used in a publication
without the authors permission. Alternatively a student may submit materials from another source
to be published on the university website. Subsequently the university or local authority may be
exposed to court action. A university therefore needs to be provided with information, control,
monitoring, legal protection and insurance against such problems.

Copyrighted Courseware
Increasingly courses are transformed in courseware and are converted into commercial products to
be bought and sold in the market. Universities become producers of as well as a major market for
copyrighted videos, CD-ROMs, websites and courseware. Paradoxically, very little criticism is
formulated on national and European policy level. On the contrary, in the European political debate
the knowledge economy and the valorisation of university knowledge is encouraged

Content and Publisher

Over the last decades, textbook publishers have been very successful in the higher education
market. In the Internet age the intensity and impact of the publishers involvement in higher
education such as Prentice-Hall and Elsevier Reed increased rapidly. Publishers have a serious
market share in the development of online content of courses. At the same time there is a source of
conflict between the faculty members and the university administrators. Faculty members may
complain because the publisher menu may lock in their online educational choices and thus the
freedom of knowledge gathering. If a critical mass of faculty members adopt a certain menu
provided by the publisher, this may lock in universities to resource commitments, e.g. decisions on
ICT support and computer expenditures. Similar lock in effects can be observed in the printer
industry, where users are obliged to buy very expensive cartridges. Alternative and often cheaper
applications are blocked due to different standards.

Patents on Software
With respect to the open source movement it is interesting to see how the operating system Linux
gained market share from Microsoft. The operating system of Linux is part of the so called open
source movement and is considered anarchistic by some critical voices. Linux offers products to
servers, databases and mail programs. Companies and programmers can download copy or
change whatever they like. A precondition is that any change in the software is announced in the
open source network. This guarantees that in the end improvements are given to the open
community. Privatization or filtering of knowledge is prevented. Linux has a good reputation due to
its flexibility and user- and cost friendliness.

The whole idea of Open Source software development is extending in many areas of work.. The
latest threat for Linux might come from the patent on software. In the USA it is possible to get
patent on software. For example, America Online has patent on the phenomenon instant
messaging, which is also used by its competitors Microsoft and Yahoo!. However, AOL did not
make a court case of this matter so far. Why may strict patents on software limit the innovative
power of a company or even a whole group of nations? If Tim Berners in 1989 would have patented
his by that time unknown software HTML and HTTP, the world wide web would now be nonexistent. However, the current trend towards patents on software seems to be irreversible.
American software developers, in particular the smaller companies, encounter legal obstacles if
they want to launch new innovative software on a competitive market with more than thirty
thousand
software
patents.
Innovations
and
free
knowledge
flows
are!
Limited through these obstacles. To overcome these obstacles Open Source is growing in
popularity. This growth of popularity, however, creates threats to the largest software developers.
According to Blind and Edler (2003) the negative impacts on the short run may be small, but on the
long run the process of Open Source as a kind of public good, will be seriously harmed. The
authors argue that it is an interdisciplinary challenge (law, economics and technology) for the future
to find a proper, effective and efficient way of protection. They propose one solution: the
introduction of a reward system, under which innovators are paid for innovations directly by the
government and the innovations pass immediately into public domain, since obligatory licensing
may obstruct the incentives of innovators or lead to other even more destructive protection
strategies.

The Future of Intellectual Property

Spinello (2003) discusses in his essay The Future of Intellectual Property the contours of
intellectual property protection. He refers to two papers: The Future of Ideas (2001) by Lessig who
argues that the expanding scope of intellectual property protection threatens the Internet as an
innovational playing field. This is in line with the statement made by Roger Clarke (2001): that in
the next decades new technologies of identification and tracking will destroy individual freedom.
Litman (2001) argues that copyright law is too complicated and too restrictive. Both authors agree
that the overprotecting intellectual rights nowadays cause blocked creativity. The vitality of the
intellectual playing field is in danger. ICT created new opportunities to expend information and
knowledge in our society. However, this break through is hindered by legal and authoritarian
protections of intellectual property. Social and technological opportunities created by ICT are
threatened by far! Reaching IPR protections and may slow down the overall creation of knowledge
in society. The overall objective of sharing information and knowledge to enhance knowledge
growth of mankind might be hindered by far reaching protection methods of intellectual property. A
balance is needed between these individual interests and the societal needs towards knowledge
growth. Broad restrictions and property controls on the Internet hinder the public interest and the
public domain. The more the public domain is constrained, the greater negative effects it will have
on future creativity. On the long run Spinello (2003) argues that the cost of innovation may be
substantial. Intellectual property is developing into very complex legislation. On the other hand
there are significant disadvantages to bring down the intellectual rights to a minimum, in case the
importance of the worker who deserves credits for his creative work is undervalued. How to find an
appropriate award in granting property right of a creative idea or product? According to Spinel this

award is possible, as long as the granting doesnt negatively influence the intellectual play ground
for future creators.
In summary, a balance is needed between overprotecting and under protecting. The both extremes
are undesirable and in some way unreasonable in real life. Looking at the protection of intellectual
property a continuum can be designed (figure 1), which represents on the one side the extreme
under protection of intellectual property, supported by the Open Source movement and the freedom
of information. On the other side the overprotection of intellectual property, advocated by interest
groups supporting the idea that the creator of knowledge deserves full protection and rights on his
creation of mind. In the western world we see a tendency moving to overprotection of IPR. A
balance is needed between overprotection and under protection of Intellectual Property. The
desired range of intellectual property protection isnt one exact point in the continuum, but it is a
range. This range is influenced by a lot of external filtering issues, like the characteristics of the
products/services, the culture(s) of the country, legal systems, ideologies, political and societal
systems, and others. In this range the balance should be defined best between these individual
interests and reward fore mind-creations and the needs of mankind to extend knowledge.

. Intellectual Property Rights in Information Technology

Copyright
What information technology is protected by copyright?
Copyright is currently a primary source of protection for software programs, user manuals,
databases, websites and other information technology works in Canada, provided that they meet
the requirements of the federal Copyright Act.
To be the subject-matter of copyright, the work must be "original", meaning that it originated from
the author and was not copied (a higher standard of skill and judgment is required for the protection
of databases). Further, for a work to garner copyright protection in Canada it must be fixed. Fixation
is not always clear, especially with respect to information technology.

Who owns the copyright in information technology?

The author of an information technology work is generally considered to be the first owner of the
copyright in it. An exception to this rule is where the author is an employee and the work is created
in the course of his employment, in the absence of an agreement to the contrary, the first owner of
the copyright is the employer not the employee. Canada does not have the U.S. equivalent concept
of a "work made for hire".
Is software a copyright work?

Computer programs are protected under the Copyright Act as literary works. Canadian courts have
recognized that the writing of a computer program is a creative "art form" and therefore computer
programs will typically meet the minimal originality requirement to obtain protection under the
Copyright Act. Updates or enhancements to software are subject to independent copyright
protection. The fact that a computer program is created using well-known programming techniques
or contains unoriginal elements may not be a bar to copyright ability if the program as a whole is
original.

What elements of hardware are copyrightable?

Computer hardware designs and plans have received copyright protection in Canada. Further, any
software code stored on the hardware may be subject to copyright. Computer chips may be subject
to integrated circuit topography protection

Can databases receive copyright protection? What criteria must be met?

Under the Copyright Act, databases are given protection as "compilations". The Supreme Court of
Canada has ruled that, to receive copyright protection, databases must be independently created
by the author, and the selection and arrangement of the components that make up the database
must be the product of an author's exercise of skill and judgment. The exercise of skill and
judgment must not be so trivial so as to be characterized as a purely mechanical exercise.
However, "creativity", in the sense of novelty or uniqueness, is not required. In addition, the creator
of the database only acquires copyright in the database and not in the individual components of the
database.

What other Internet elements have received copyright protection in Canada?

Courts in Canada have held that a Web page's look, layout and appearance are protected by
copyright, as are musical works stored or created electronically.

What information technology is not protected by copyright ?

Canadian copyright law does not protect the underlying mathematical calculations, algorithms,
formulae, ideas, processes, or methods contained in information technology, only the expression of
the same.

What information technology has not yet been considered by the courts to be
protect able?
Canadian courts have yet to determine whether, and to what extent, computer languages, macros
and parameter lists, communications protocols, digital type-fonts, and works that result from the
use of computer programs are protected by copyright.

Limits and exceptions to copyright

.First-sale doctrine and exhaustion of rights
Copyright law does not restrict the owner of a copy from reselling legitimately obtained copies of
copyrighted works, provided that those copies were originally produced by or with the permission of
the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the
United States this is known as the first-sale doctrine, The first-sale doctrine is known as exhaustion
of rights It does not permit making or distributing additional copies.

. Fair use and fair dealing

Copyright does not prohibit all copying or replication. The statute does not clearly define fair use,
but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:
1.
2.
3.
4.

the purpose and character of the use;

the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
the effect of the use upon the potential market for or value of the copyrighted work.[22]

. Fair dealing uses are research and study; review and critique; news reportage and the giving of
professional advice (i.e. legal advice).

Transfer and licensing

A copyright, or aspects of it, may be assigned or transferred from one party to another. A copyright
holder need not transfer all rights completely, though many publishers will insist. Some of the rights
may be transferred, or else the copyright holder may grant another party a non-exclusive license to
copy and/or distribute the work in a particular region or for a specified period of time. A transfer or
license may have to meet particular formal requirements in order to be effective The copyright itself
must be expressly transferred in writing.
A transfer of ownership in copyright must be memorialized in a writing signed by the transferor. For
that purpose, ownership in copyright includes exclusive licenses of rights. Thus exclusive licenses,
to be effective, must be granted in a written instrument signed by the grantor. No special form of
transfer or grant is required. A simple document that identifies the work involved and the rights
being granted is sufficient. Non-exclusive grants (often called non-exclusive licenses) need not be
in writing under U.S. law. They can be oral or even implied by the behavior of the parties. Transfers
of copyright ownership, including exclusive licenses, may and should be recorded in the U.S.
Copyright Office. (Information on recording transfers is available on the Office's web site.) While
recording is not required to make the grant effective, it offers important benefits, much like those
obtained by recording a deed in a real estate transaction.

References
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Sectoral e-Business Watch project homepage

European Commission, Directorate General Enterprise and Industry, Policy Area ICT for
Competitiveness & Innovation
The European e-Business Report 2006/07 edition
Nepelski, Daniel und Sushmita Swaminathan (2007): OSS Adaption: Who is Leading and
Why? in: DIW Weekly Report, No. 1/2007, Volume 3, pp 2-3 (Scientific article about open
source software adoption based on data from the e-Business Watch survey 2006.)
The European e-Business Report 2005 edition, p 21
The European e-Business Report 2005 edition, p 13
The European e-Business Report 2008 edition, p 9
The European e-Business Report 2008 edition, p 9
The Sectoral e-Business Watch ICT and e-Business Impact Studies 2009
http://edoc.hu-berlin.de/dissertationen/koellinger-philipp-2006-02-07/PDF/koellinger.pdf.
http://en.wikipedia.org/wiki/Essential_patent
http://en.wikipedia.org/wiki/Standardization
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http://www.slideshare.net/alexglee/techdevsnapshotrfidtagantenna20091q
http://www.epcglobalinc.org/home