IPRs & Cyber Ownership
Masitoh Indriani, SH., LL.M Department of International Law Faculty of Law Universitas Airlangga
(c)MI, Nov 2015
On the Internet, it is very easy to create several copies and transmitting the same
in different locations of world in few minutes. For these reasons, the Internet
has been described as
(c)MI, Nov 2015
Contents
Discussion
The Opportunities and Challenges Cyber Law Issue Area
IPRs and Cyber Ownership
(c)MI, Nov 2015
Patent Law
Trademark Law
Trade Secrets
Copyrights
Technology Transfer
Intellectual Property Issues Area
Copyrights
ü The protection of rights in some
aesthetic or artistic works
ü It requires originality
The infringement of Copyrights:
a) To copy the work or any substantial part of it;
b) To issue copies of the work to the public;
c) To perform, show, or play the work in public;
d) To broadcast the work or include it in a cable
programme service;
e) To make an adaption of the work or do any of the above in relation to an adaption.
Copyrights and Peer to Peer File Sharing à Risks
1. the release of personal and confidential information
2. Identity theft
3. Violates consumer confidence à consumer protection
4. Threatening national security???
5. Bundled spyware and
viruses downloaded from the network
6. Threatening creative industries (music and film industry)
Legal Problems of P2P File Sharing à
1) Copyrights Law Infringements
à Fair Use and Compensation e.g: AU, BE, CA, Finland, DE,
LUX, NL, POR, RUS, Sweden, Swiss, US (blank media tax or levy)
2) Privacy Law
3) Databases Law
Patents Law
ü A patent may be
awarded in respect of an invention
ü The invention may relate to either to a new product or to a
novel process
ü The subject matter should be capable of ‘industrial application’
Requirements for patentability:
a) The invention is new;
b) It involves an inventive step;
c) It is capable of
industrial exploitation
d) The grant of a patent for it is not excluded*
*UK Patent Act
Matters excluded from patent protection:
a) A discovery, scientific theory or mathematical method;
b) A literary, dramatic, musical or artistic works or any other
aesthetic creation whatsoever;
c) A scheme, rule or method for performing a mental act,
playing a game or doing
business, or a program for a computer;
d) The presentation of information.
Patented Software à 10th Meeting
ü “Software” is Inherently a Copyright Concept
ü Software (source code) is copyrightable subject matter. ü Therefore, any discussion of
software ownership requires a
discussion of certain basic copyright law principles.•
ü Yes, patent rights can be implicated as well.
Software and Intellectual Property Ownership
v In considering software ownership and the provision of rights to others to use the software, we need to consider
· Intellectual Property (“IP”) rights for
asserting rights of ownership, in conjunction with the concept of :
v “Licensing”, the legal mechanism for providing usage rights to others. Just what are these rights and how are they acquired and how will they be maintained?
v What are the sort of things you need to look at in order to ascertain rights of ownership under the applicable categories of IP law, being
ü Copyright (expression of the software in some tangible form)
ü know-how (sometimes called “trade secret” and that needs to be maintained in absolute confidence and not publicly disclosed) or even
ü patent (yes there are
instances where software can be patented but that’s for
another time)
ü trade-mark (there may be a need to maintain the
uniqueness of a brand or a logo)
Trade Marks
ü The subject matter is to protect a holder’s economic interest in some form of trading name or sign
ü Also can be classed under the heading or design
ü Protect items which serve some functional purpose
(c)MI, Nov 2015
Domain Names (DN) Trade Marks
As an address or a name in the internet networks
As a distinguishing feature in the industry a d trade
Non Property, part of Information Society
Property à Intellectual Creation
First Comes, First Served First to Filed, First to Used
There is no Substantial Examination Substantial Examination
As long as can not be proven as a bad faith, the acquisition of DN is not an act that violates law
Trade Secrets
ü any confidential business information
which provides an enterprise a
competitive edge may be considered a trade secret.
ü The subject matter of trade secrets is
usually defined in broad terms and includes sales methods, distribution methods, consumer profiles,
advertising strategies, lists of suppliers and clients, and manufacturing
processes.
ü Including know-how à that needs to
be maintained in absolute confidence and not publicly disclosed)
Know-how…
ü any form of technical information or assistance relating to the
manufacture or placing into
operation of the said products.
ü It also means any practical
knowledge, techniques, and skill that are required to achieve some practical end.
ü It is considered a intangible
property in which rights may be bought and sold.
Technology Transfer Problems:
There are many problem with transfer of technology in
developing countries:
1. Lack of pool of scientists and researchers in specific domains 2. Brain drain
3. Small market size 4. Bureaucratic climate 5. Inability to make public investments in appropriate research and infrastructure
(c)MI, Nov 2015
Cyber Law Issue Area
Cyber Rights
National Security
Criminal Law
Criminal Law à 13th Meeting
ü Cyber Crimes
ü Cyber Bullying
ü Cyber Terrorism
ü Hate Speech
ü Online Fraud
ü Online Defamation
ü IPR’s on the Internetà Digital Content Violation
Online Privacy
The main causes: the development of IT
1. Cloud Computing
2. Search Engines
3. Social Networks
4. Smartphone and mobile Internet
The legal threats: à State Surveillance
1. Real time interception
2. Real time
communication scanning
3. Data Gathering
4. Internet Censorship
5. Anonymity Limitation
Cyber Rights à 12th meeting
ü Freedom of Expression
ü Freedom of Speech
ü Freedom to Speak
National Security à13th Meeting
ü Cyber Security
ü Cyber Army
ü Cyber Defense
