Professional Development

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Intellectual Property Right, European Patent, and Copyright

Computer programs and databases are regarded as literary work covered by:

  • Copyright, Designs & Patents Act 1988
  • Copyright & Rights in Database Regulations 1997
  • European Directives
  • Case Law

Electronic publishing for copyright:

  • Multimedia products may be considered as databases or compilations
  • Databases must be personal intellectual creations
  • Software is a basic form of intellectual property but how it should be legally protected has been subject to extensive debate
  • Expressions of ideas can be owned but not the ideas themselves

Copyright protection is:

  • Free
  • No formalities required, it is automatic on creation
  • It is practical and has developed to take account of technological changes and advances

Copyright can protect literary works, computer programs, their preparatory design material and databases

The law of confidence protects trade secrets, confidential, technical, and commercial information.

Copyright lasts for the lifetime of the author + 70 years or 50 to 70 years from creation to publication.

You can't copyright an algorithm because they are the idea, but you can copyright the writing as a unique expression.

You can copyright source code and object code - they are literary works - creating new source code may be negligible with the algorithm.

No copyright implications if you create from scratch a similar program to your competitors

  • There may be issues with employees moving from one company to another

You cannot market a similar product with a similar name - passing off and IPR laws

IPR laws can help to protect new developments. The function is key to the appropriate legislation (design right)

A product with striking looks can be protected with IPR (registered design)

Software which creates a new technical effect can be protected by patents

A database can be copyright as a collection of works. Additional copyright with individual entries is also possible. No infringement when extracting or re-utilising under licence.

Work that is auto-generated is copyright by the author. Assignment can be dealt with contractually - copyright of the software and the output are not the same thing.

Permission is needed to use all works protected by copyright, be they spoken word, video/film, photographs, music etc.

Websites are copyrighted. Check before printing, copy and pasting etc. Inline links can present information out-of-context - should get permission first.

With your own webpages, clarify your position on printing and downloading. Descriptive use and use of indexing content does not infringe copyright but trademarks should be minimised and disclaimers added.

Data Protection and Freedom of Information

Freedom of Information Act:

  • Gives you the right to ask any public sector organisation for all the recorded information they have on any subject
  • Anyone can ask for information - no restrictions on age, nationality or where you live
  • Request is handled under the Data Protection Act if you ask for information about yourself

You can request information from:

  • Government Departments
  • Local Authorities
  • NHS
  • Schools / Universities
  • Police Authorities
  • British Library / Museums
  • Commission for Racial Equality
  • Financial Services Authority
  • Intellectual Property Advisory
  • BBC

Make your request in writing (letter / email) and include:

  • Your name
  • An address where you can be contacted
  • A detailed description of the recorded information

You should receive the information within 20 working days. If they need more time, they will contact you and tell you when you can expect it.

If sensitive information is withheld they must tell you why.

They can turn down a request if it will cost more than £450 (£600 for central government).

If you are not satisfied you can complain to the information Commissioners Office.

DPA 1984 was replaced by DPA 1998 in line with the Strasburg Convention

Private data was lost/stolen by 132 local councils more than 1000 times since 2008 (in 2015)
3 Aberdeen workers were sacked for accessing private information in September 2014
A Local Authority was fined £250,000 after employee pension records were found in a paper recycling bank.

Privacy policies should be easy to find and understand:

  • Immediately visible and accessible from each service landing page
  • Provide an address where users can contact the company to exercise their rights

Data Subject - Someone who has data about them stored somewhere, outside of their control
Data Recipient - Someone to whom the personal data is disclosed to
Data Processor - Person or company that collects and keeps data about people
Data Controller - Person or company that collects and keeps data about people
Information Commissioner - Person (and his/her office) who has the power to enforce the act. A UK independent supervisory authority set up to protect personal information and promote access to official information.
Telephone Preference Service - Central opt-out register to not receive unsolicited sales and marketing telephone calls - a legal requirement.

Database of users MUST be registered if given to a third party

Computerised database of family system is domestic and does not require registration.

Incorrect information held must be corrected. Any damage and/or distress caused by inaccuracies could be liable for compensation.

Personal details held by a company does not need registration if the information is secure and not given to a third party.

Customer data passed outside of the EU - accurate and not sensitive but could still be passed to a third party - get client's permission.

Customer data can only be used for the purpose which it was registered. You cannot sell for marketing without prior agreement.

If backups are used because the database is unavailable, customers can be entitled to compensation if data about them is used and out of date.

Organisations which are Data Controllers or charitable organisations must register with the DPA.

Employers have the right to read emails with prior permission. They can read them without permission if they suspect criminal activity.

Responsibilities to disclose under Freedom of Information Act:

  • Where absolute exemption applies, duty to confirm or deny does not arise
  • The public authority may reasonably require further information to identify and locate the information requested
  • If the public authority does not hold the data it still has a duty to confirm or deny

Computer Misuse Act

Section 1:

  • Hacking and attempted hacking
  • An offence to gain unauthorised access to a computer
  • No requirement that there is intent to commit a crime

Section 2:

  • Intent to commit or facilitate serious crime
  • Does not have to involve use of a computer or be committed

Section 3:

  • Any act which causes unauthorised modification of contents
  • Needs requisite intent and requisite knowledge

Section 1 if you hack someone's computer system
Section 2 if you attempt to gain - does not have to be successful
If you gain financially, Theft Act also applies

Customer overcharged via wrong discount - must prove it was intentional in order to bring action.

Access to email system and posts message:

  • Section 1 (hacking)
  • Section 2 (modification, requisite intent, requisite knowledge)
  • If over the internet, Telecommunications Act 1984 and Interception of Telecommunications Act 1985

Deleting all files on a server knowing that there is backup:

  • Section 3 - circulating a virus, possibly also blackmail

Gain access to password file and change 1 password:

  • Section 3 - unauthorised addition of a password

Sending malicious material over email:

  • Section 3
  • Telecommunications Act section 43 for offensive, indecent, obscene or menacing

Protection of Children Act 1978 and Criminal Justice Act 1994 - make, distribute and possess indecent images of children

Interruption of a communication does not apply if the person has a right to control the use of a system.

Trademarks, Patents and Designs

Patent Act 1977 - Copyright, Designs and Patents Act 1988

  • Protect new inventions
  • Protects features and processes that make things work
  • Lets inventors profit from their inventions

Inventions must:

  • Be new
  • Have an inventive step that is not obvious to someone with knowledge and experience in the subject
  • Be capable of being made or used in some kind of industry

Inventions must not be:

  • A literary, dramatic, musical or artistic work
  • A way of performing a mental act, playing a game or doing business

Benefits of patents:

  • Monopoly rights
  • Infringement can result in injunctions, destruction of infringing articles, damages or account of profits

If you want to protect your invention you must:

  • Document it - notebook / inventor's journal
  • Sign this by a witness
  • Research it - from a legal and business point of view
  • Search for patent that is the same or similar to yours
  • Research your market - more than 95% of all patents never make money
  • Make a prototype
    • Do not file a patent beforehand
    • Can make changes before you register
  • Application must be made to the Patent Office
  • Patent can be renewed for up to 20 years and extended to other countries

Patents are a more desirable form of IP than copyright
Gives the owner a monopoly in the invention
Costs £230 - electronic, £280 - paper
If application fails, other forms of protection are available

Registered Designs

  • Covers functionality aspect of your design
  • Permits registration of items of computer hardware
  • Give monopoly protection for up to 25 years

Design Rights

  • Covers aesthetic look of your design
  • Automatic right - no need to register
  • Infringement depends on proof of copying
  • Protects shape and configuration for up to 10 years

Copyright and patent laws constrain software development because:

  • A company has to do an extensive search to find out what is already claimed
  • Slows down the process of developing new software
  • Increases the costs of getting something to the market

Trademarks 1994

  • A sign which can distinguish your goods and services from those of your competitors
  • Can be words, logos or a combination
  • Only way to register is to apply to the Intellectual Property Office
  • Protects the goodwill and reputation which a trader has built up
  • Prevents the public from being deceived as to the origin of goods and services
  • Gives the owner the right to monopolise use of that work
  • If anyone else uses it they can be sued
  • Initial registration is 10 years, renewal is also 10 years
  • Registration fee £200, renewal fee £200 for one class and £50 for each additional class
  • Should be distinctive for the goods and services you provide

Should not:

  • Describe your goods / services or any characteristic
  • Have become customary in your line of trade
  • Not be distinctive
  • Be offensive
  • Be against the law
  • Be deceptive

Brilliant Computers - not registrable - descriptive
IBN Computers - not registrable - similar to IBM - confusion
RAM Computers - not registrable - customary in current language
Compute-a-solutions - registrable
Compute-a-Date - registrable

Comparative advertising must be in accordance with honest practices and does not take unfair advantage or be detrimental to character or repute.

Trademarks can be used within keyword meta-tags as long as they are not visible when the page is viewed.

Passing Off

If you have not registered your trade mark you must prove that:

  • The mark is yours
  • You have built up a reputation around it
  • You have been harmed in some way

It is difficult and expensive to prove passing off

Passing off can include material not encompassed by trademarks such as advertising material:

  • Have to show that a trader's business is affected
  • There are no formalities in terms of registration
  • Trademarks are protected from the moment of registration
  • Passing off required time for a reputation to be acquired
  • Protection via common law is cheaper but weaker than statutory