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Copyrights & Database Rights

COMP107 Lectures

This lecture was given in the form of a PDF. View it here if you want to see it in full.

There are several schemes for protecting intellectual property.

Patents

Form of legal protection given to individuals who create an invention or process.

Software can be patented in some countries, e.g. USA

  • More than 40k software patents are issued every year in US
  • Exclusive rights for a particular software technique
    • (Many frustrating cases, e.g. “using XOR to draw a cursor on a bitmap display”)

Be aware if you want to export software or services to the USA.

In the UK

In UK, patents cannot describe algorithms or mathematical methods (these are classed as “discoveries”).

Software that make a technical contribution or solve a technical problem can be patented.

  • (e.g. Nokia application to patent software to programme a mobile phone system remotely was (eventually) approved in UK on the basis that it made a technical contribution when compared to current technology)

Trademarks

A sign which can distinguish the goods and services of an organisation from those of others.

A sign includes words, logos, pictures or a combination of these.

A trademark gives the owner the legal right to take action against anyone who used their mark or a similar mark on the same or similar goods and services.

You can use a trademark to identify the source of goods and services.

To qualify for a trademark, the “mark” or name is supposed to be distinctive.

  • However, a (not so distinctive) trademark for “uh-huh” was granted to Pepsi.
  • But AOL could not trademark “You’ve Got Mail!”, “Buddy List” or “IM”.

Design

Design relate to the physical appearance of an item (industrial or handcrafted):

  • Lines
  • Contours
  • Colours
  • Shape
  • Texture
  • Material

To qualify, design must be new and individual in character.

  • Can protect design of devices (the design of a specific tablet as a, say, rectangular shape, rounded corners, set of colours, position and shape of buttons).
  • Or can protect graphical user interfaces (GUIs), any elements of these (icons) or animated features.

Apple filed a design patent for the page turning animation.

  • Doesn’t cover any animation for turning a page, but rather the appearance of Apple’s design in turning a page
    • So other key players (e.g. Amazon for Kindle or Barnes & Noble) cannot exactly copy this particular turning animation.

Trade Secrets

Information that is highly valuable and considered crucial in the operation of a business or other enterprise (e.g. formula for Coca-Cola, a chemical compound, a blueprint).

  • Used when an invention does not meet the patentability criteria, or when disclosing it through the patenting process is considered harmful to the business.
  • Trade secrets are valuable only as long as they are not disclosed.
  • In the UK are protected by common law under the law of confidence.
  • Best example in software is the Google search algorithm.

Copyright is a property right which applies to:

  • Original Literary
    • Literary work covers also computer programs.
  • Dramatic
  • Musical
  • Artistic Works
  • Sound recordings
    • Sound recording is a recording of sounds, from which the sounds may be reproduced, regardless of the medium.
  • Films
  • Broadcasts Or Cable Programmes
  • The typographical arrangement of published editions.

Copyright lies with the author of a work, or, if the work has been created by an employee in the course of his employment, with the employer.

Duration

  • Literary, dramatic, musical or artistic works:
    • 70 years from the end of the calendar year in which the last remaining known author of the work dies, or from the end of the calendar year in which a work was created or made public, whichever occurred later, if none of the authors is known.

    An author is unknown if it is not possible for a person to ascertain their identity by reasonable inquiry.

  • If the work is computer-generated copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.

These rules also apply if the owner of the copyright is the employer of the authors

  • Sound recording, broadcast or cable programmes:
    • 50 years from the end of the calendar year in which the work was created or the work was first released, if released within 50 years of being created.
  • Films
    • 70 years from the end of the calendar year in which the last known principal director, author or composer dies, or the year in which the film was created or made public if they are unknown.
  • Typographical arrangement of published editions: * 25 years from the end of the calendar year in which the work was first published.

Rights

Copyright restricts what actions one might perform with the copyrighted work.

The owner of the copyright has the exclusive right:

  • To copy the work.
  • To issue copies of the work to the public.
  • To rent or lend the work to the public.
  • To perform, show or play the work in public.
  • To communicate the work to the public.
  • To make an adaptation of the work or do any of the above in relation to an adaptation.

The Copyright and Related Rights Regulations, 2003 (which extend and amends the 1988 act) clarifies the notions of communication to the public, which include:

  • The broadcasting of a work.
  • The making available to the public of a work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

This covers YouTube, BBC iPlayer, and similar services.

Copying Edge Cases

In most cases copying does not mean reproduction or reusing of ideas or information.

Copying in relation to:

  • A literary, dramatic, musical or artistic work means:
    • Reproducing the work in any material form, including storing the work in any medium by electronic means.
  • A film or a broadcast includes:
    • Making a photograph of the whole or substantial part of any image forming part of the film/broadcast.
  • The typographical arrangement of a published edition means:
  • Making a facsimile copy of the arrangement.

Consumer Rights/Fair Use

There are no “fair use” exceptions in UK law but fair dealings with copyright works in form of quotation and excerpts are allowed provided:

  • Quoted material is justified & the source of the quoted material is acknowledged

and the quotation/excerpts are used:

  • For the purpose of critical review, news reporting, non-commercial research or education.

Incidental copies (e.g. incidental recording of images or music in a home movie) or temporary copies (e.g. web cache) are also allowed.

These exceptions need to be strictly checked (many misconceptions on what is allowed, esp. under “fair dealing”)

Personal Copies

Since Oct. 2014 there is an exception for personal copies for private use.

A copy of a work other than a computer program by in individual is not infringing copyright if:

  • It is a copy of the individual’s own copy.
  • It is made for the individual’s private use.

Private use include making a copy as a back-up, or for format shifting, or for the purpose of storage (including storage via internet).

Illegalities

By the previous section it is illegal to:

  • Copy or distribute software or its documentation without the permission or licence of the copyright owner.
  • Run purchased software on two or more computer simultaneously unless the licence specifically allows it.
  • Knowingly, or unknowingly, allow, encourage or pressure employees to make or use illegal copies within an organisation.
  • Infringe laws against unauthorised software copying because a superior, colleague or friend compels or requests it.
  • Loan software in order that a copy be made of it.
  • Import an infringing copy other than for personal use.
    • Importing into the UK, without the licence of the copyright owner, otherwise than for personal use, what one knows or has reason to believe is an infringing copy of a work.
  • Possess or deal with (sell, let, rent, offer, expose, distribute) an infringing copy of a work.
  • Provide means for making infringing copies.
  • Make, import, sell, offer, advertise devices or means, or publish information intended to enable or assist persons, to circumvent an electronic form of copy-protection.

Adaptation

In relation to a computer program, adaptation means an arrangement or altered version of the program or a translation of it.

Translation includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code.

In relation to a database, adaptation means an arrangement or altered version of the database or a translation of it.

Changing identifiers or swapping lines of code in a computer program creates an adaptation so it is restricted by copyright.

Exceptions for Computer Programs

You can’t do anything with a program without copying it.

Installing is copying, and even executing is copying (into the computer memory).

Lawful use of computer programs are guaranteed the right:

  • To use computer programs.
    • Includes transferring, installing and running.
  • To make backup copies.
  • To de-compile computer programs in order to obtain information necessary to create an interoperable program.
    • Not a similar one.
  • To observe/study/test the functioning of the program in order to determine the ideas and principles underlying it.

Database Rights

The Copyright, Designs and Patents Act 1988 defines a database as a collection of independent works, data or other materials which are:

  • Arranged in a systematic or methodical way
  • Individually accessible by electronic or other means.

Hence a database can be both an electronic artefact and a paper record.

Applicable Rights

Two legal rights are typically applied to databases of all sorts (electronic or otherwise):

  • Copyright
    • May or may not apply, depending on whether the DB qualifies as “literary work”.
  • Database right.
    • Always applies.
    • Duration is 15 years, but may be renewed if substantial changes occur in the DB

DBs as Literary Work

In order to be a literary work, “the selection or arrangement of the contents of the database” must constitute the author’s own intellectual creation (s.3A of the 1988 Act).

In this case, copyright extends to the author’s life + 70 years

Applicable Laws

Main document: “The Copyright and Rights in Database Regulations 1997”

  • “sui generis” law (“of its kind” or “unique” law made in recognition of a singularity).
  • Implements the The EU Council Directive 96/9/EC on the Legal Protection of Databases.
    • Aimed at standardising the legal protection provided to databases across the EU

Sui Generis

Copyright does not apply to DBs whose aims are to be complete and objective (i.e. when the creativity of the author is not a crucial element).

A sui generis database right applies to protect the “qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents” (art. 7(1) of the EU directive).

The “substantial investment” must be present, even if it doesn’t need to be financial.

Aim of the Regulation

To define “measures relating to the prevention of unauthorised extraction of the contents of a database and of unauthorised re-utilisation of those contents”.

Two notions introduced by the regulation in relation to any contents of a database are then:

  • Extraction
    • The permanent or temporary transfer of those contents to another medium by any means or in any form.
  • Re-utilisation
    • Making those contents available to the public by any means

Owner of the Rights

The owner of DB right is (art. 14 UK 1997 regulations):

The person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database.

Where a database is made by an employee in the course of his employment, his employer shall be regarded as the maker of the database, subject to any agreement to the contrary.

Infringements

A person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database. (Art. 16)

The repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents. (Art 16)

There are few examples of this law being acted on.

Aggregation Sites

Unless the website operator can show there has been substantial investment in verifying or presenting those listings, database right is unlikely to subsist and a scraper might be able to take created listings without infringing database rights.

The difficulty comes when, as will usually be the case, more data is taken. Product names, descriptions and specifications will usually not be created by a website operator.