Copyrights are used to protect a wide variety of works and have developed vigorously since its beginning as a very important intellectual property right. Copyright has a pragmatic approach and it extends to a wide range of works regardless of quality, subject to some basic requirements which are usually satisfied. Copyright law protects computer software, whether it be computer programs, computer files, printed documents or databases. Current issues concern the scope of protection, for example whether it is permissible to create a new program to emulate the operation and functionality of an existing program. Software is protected under the copyrights act where as computer programming languages are not protected due to the extent they compromise principles and ideas.Information technology industries rely heavily on intellectual property law to protect their products and other assets.
‘Intellectual property [1] means any patent, trademark, copyright, designs right, registered design, technical or commercial information or other intellectual property.
Any patent, trademark, service mark, registered design , copyright or design right, or
Any licence under or in respect of any such right [i]
Intellectual property (IP) is original creative work, such as a piece of music, an invention, a piece of software or a brand, that has been developed to such a stage, and captured in some permanent way, for example, on paper, that it can be owned in the same way as physical property [ii] . The owner of IP has control over it and would expect to be rewarded for its development and use. Anyone who has a new creative or innovative idea then has the right to benefits from it. That right can be bought, sold, hired or licensed like any other property. The advancement in the technology gives more hindrance to the existing intellectual property law.
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LAWS RELATED TO INTELLECTUAL PROPERTY
PATENT LAW
Now days, for industrial related inventions the patents laws are closely concerned. These laws have very special and dominant mode of protection for newly invented things or projects to congregate the challenging standards. In general with other intellectual property rights, ‘a patent is a form of personal property that may be assigned, licenced or charged by a way of mortgage’. This statement was acknowledged by the Patents Act 1977 s 30 (1) that a patent is not a thing of action. The patent law provides only limited period of time in return for disclosure of the information’s and data’s regarding to the invention [iii] .
The patents Act 1977 s 1(1) requires the following conditions to be satisfied for a patent to be granted for an invention:
The invention is new
It involves an inventive step
It is capable of industrial application; and
The grant of patent for it is not excluded by subsections
To make a patent for an invention, there are three basic statements are required. They are novelty, inventive step and it should be an industrial application. And also the industrial application should provide a clear cut structure or an agenda in which to explore the legal consequences. On the other hand the Patents Act 1977 contains no there is no definition of what an invention is. This may be due to that the responsible for drafting the Act felt either the work was too discouraging, or they might be considered that the definition was seen as sterile later and a fetter on the development of the law in tune with the technological development. And also the patent law includes the protection for the particular product in the way it works.
COPYRIGHT
This is the law which is used to prevent others from unreasonable advantage of a person’s creative inventions or work. Copyright, Designs and Patents Act 1988 are three specified types of works which exists in the property right. To do work such as making a copy, broad casting or selling copies to the public, the owner is the only person who has exclusive right to act related to the work.
The qualification requirements are
Original literary, dramatic, musical or artistic works;
Sound recordings, films or broadcasts; and
The typographical arrangements of published editions
In general, copyright is the thing which is given to the owner of the original work or an inventor. The works available on the internet environment are also protected by copyright. This copyright law provides a maintaining balance of rights between the inventors that means the original copyright owners for enough payment for the use of their works, and rights to access the ideas and information by the society. We can conclude the meaning of copyright in simple way that copyright does not protect ideas, but only the expression or product of ideas.
The copyright law not only protects the work but also it should not give any rise to monopolies and it is permissible to any person to submit the work which is similar to the work available before, that is pre- existing work as long as the later work is not taken from the first. Patents Act 1988, Copyright and Designs were passed, this is considered as the major advancement is technology. Due to the account of moral rights and inalienable rights this Act has due which belongs to the author irrespective of the ownership of copyright [iv] .
Copyright is totally different by other laws provided by intellectual property rights. It gives perfect right to the authorities that means the owners and does not give rise to monopolies. It is an act giving rise to infringement of copyright may be associated with or accompany a breach of confidence.
TRADE MARKS
Trademarks are a diverse and familiar feature in both industrial and commercial markets. Marks are a very valuable form of intellectual property because they become associated with quality and consumer expectations in a product or service. Trademarks can be seen as serving two main purposes: first, reflecting the fact that a registered trademark is an item of property, to protect business reputation and good-will; and secondly, to protect consumers from deception, that is to prevent the buying public from purchasing inferior goods or services in the mistaken belief that they originate from or are provided by another trader. Significantly a trademark can be characters, letters, words, numbers, colour, shape, size, sounds and etc. There should be a sign in graphical representation in order to be registered as a trademark. Trademark law in general, protects a trademark vendor’s reputation, goodwill as well as the advertising investment by providing the trademark vendor the right to use all types of products and goods for which the trademark is owned by the user.
The Trademarks Act 1994 represented a milestone in trademark law. The 1994 Act, is more clearly drafted and it paved the way for improvements in both the substantive and procedural law relating to trademarks [v] .
IDENTIFICATION OF PROBLEM AREA
COMPUTER SOFTWARE
A range of intellectual property laws are associated in the protection of computer software. These laws which are created generally confine the use of software, both domestically and internationally. The various problems addressed here are which software can be patented. Software is written with the help of software. There are miles of similar code in programs that perform similar functions. Not so in novels, musical compositions, and other fine art. Another problem is the software piracy. Software has some problems and the manufacture always releases upgrades and this is significantly costlier than the previous one. So these kinds of things generally lead to piracy of the software. Though computer software is normally not considered as patentable, today fundamentally any procedure or method that can be implemented in a computer software or program that manufactures a valuable result is patentable if properly described thoroughly and claimed completely. Another issue which imposes intellectual property is the software piracy. It is generally mislicensing, unauthorized duplication and illegal sharing of software and also distribution of it either for personal use or for business. Pirated software offends everyone right from the developer who created the software, the store owners and mainly to all the users of the software. Additionally, the economic is badly affected by the duplication of software as well as distribution of software [vi] .
In terms of protecting the computer software legally, there are three important points for the copyright owners need to be considered. The first one is copying the software by out and out piracy. This is mainly done for the Operating systems software like Windows, software related to games and famous software application like software used for word processing. Specially written software particularly comes under second and third concerns. Usually these software are written for business or companies in order to perform its operations or functions.
The advancement in latest technology extends the law which makes it to react slowly sometimes and one crisis has been the method in which it has been challenged to adjust the present legal concepts to pact with the difficulty caused by the technological advancements.
ANALYSIS OF THE PROBLEM
The problem area mentioned above is analysed by studying two case studied.
Case Study 1:
IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd, [1994] FSR 275
In this case, Mr.Poole a computer programmer also the second defendant wrote programs for payroll and accounts. The programs copyright was owned by him and ultimately a Mk 3 version was developed by him. He started a company name PK Computer Services with another person where they provided software for dealers of agricultural machinery. When Mr.Poole came out of the firm, a note was signed by him stating that the firm has got all the rights in the software they developed and which has the suite program for Mk 3. Mr.Poole was then employed to write same software to the first defendant. Both the programs written by was the same programming language and there was much similarity between the two programs. Then PK Computer Services moved its properties to the claimant which came to know about the Mr.Poole’s actions, got a search order and prosecuted for copyright infringement in its suite of computer programs [vii] .
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Copyright can be present in the computer program source code, unless it is provided with satisfactory originality. According to Copyrights Design and Patents Act 1988, section 16 and 17 states that “the owner of copyright in computer software or program has the full rights to produce the work in any form of material that is even he has the right to copy or to create an altered copy of the work or even in any substantial part”. Also section 21 CPDA states “”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, otherwise than incidentally in the course of running the program” [viii] .
Substance like design of the program or its structure can be regarded as part of copyright in together with code bits and precise structure of the program inside a separate program. Overall program as well as individual program is able of copyright protection if they were the outcome of skill, work and judgement. When resolving whether a substansial part of work been produced, code text is not taken into consideration and the substantial and copying issue can rise at different abstraction levels, and with respect to this the Court sees the structure of the programs and the features in the design. The main thing that has to be noted is the unauthorized usage of confidential source code may lead to confidential breach.
IDENTIFICATION OF POTENTIAL REFORMS
Copyright law and patent law provide various types of protection. Copyright protection widen only to expressions, and not to procedures, ideas, operational methods or mathematical concepts as such, whereas a patent is an selected right given for an invention, which is a process or a product that provides a novice solution of doing something, or gives a innovative solution for a technological problems. Along with the various advantages, there is also number of risks involved. The most important risk involved potential liability for infringement of intellectual property. There are various limitations of the intellectual property law on computer software. One among the various limitations is the fair use policy. Here copying for teaching purposes, researches scholarships mostly considered as fair use and not as the copyright infringements. But whether it is a fair use or not is determined by the court by considering four main conditions.
For what purpose it is used
Features of the copyrighted work
Substantiality and amount of part used
The outcome of the possible value of or the market of work.
Another restriction on the rights of copyright software owners is given by section 117 of the copyright law, added in the 1980 amendment [ix] :
“It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided”.
The limitation clearly proves that the user who has the right that is legitimately owns the computer software product to create various backup copies of the software in order to protect as well as prevent it from damage, or to save the software in the computer’s hard disk for the most efficient and easy use x [x] .
ANALYSIS OF POTENTIAL REFORMS
There has been much significant disagreement whether what computer features should be copyrightable or not. The difference between expression and an idea sometime be very difficult to make out even mainly for literary works like play and books. In general the ideas, functions and expressions are closely interconnected. Typically it is highly tough to separate which program element are the ideas and which are expressions. Also there is disagreement between various legal scholars, developers of the software and computer scientists whether literal or non-literal copying should be protected.
In the case 1 which is mentioned above , what Mr.Poole did is illegally wrong. He came out of the PK Computer Services and produced the copyrights of the software to the firm. But without the knowledge of the company he has written the same suite of program to another person. According to the section 16 and 17 CDPA , stated that the owner has the right to use the software or make a copy of it. Though Mr.Poole may be the person who has written the program. But once when he has given the rights to PK Computer Services Company, now the firm has all the rights and they are considered as the owner for the program. No longer Mr. Poole will be the owner for the Mk 3 version software. The Copyright, Design and Patents Act 1988 state the material can be copyrightable by the owner. So when the firm has the legal rights, Mr.Poole has written the same program to another person. He should have informed the PK Computer Services. What Mr.Poole did comes under the infringement of the copyrightable software. According to the Copyright Protection Act, the remedy for this solution can be the Defendant to pay the Claimant any profits generated by virtue of the infringement.
Remedies for Breach of Copyright:
As per the breaching laws of copyright are concerned, the 1988 act has provided us with two classes: civil and Crimical.
Civil:
The person who is responsible for primary infringement without the license of copyright owner must be sued for exploiting the work in different aspects. The injunction is the remedy for infringement and maority of them will be of a negative nature and its purpose corresponds to the need of protection against injury resulting the lack of legal rights and might not be compensated adequately. The primary concern of the courts are to assess where the parties are compensated sufficiently by damages and it also retains the power to make orders and the final relief can be given in the declaratory format of judgement. If it has undergone any damage, an injunction won’t be awarded normally and are calculated with the value of depreciation as a result of infringement.
B.Criminal:
According to the 1988 act, a person who commits an offence without the proper licence of owner leading to infringement should be investigated and the acts of prohibition include: view to committing any act infringement, selling or letting for hire, importing into UK other than private use and distribution in the business affecting the owners copyright.
CONCLUSION
Most people do not purposely break the law. They would never wish to consider stealing a box of software from the retail store or any shop. But those people who copy software without authorization act are also stealing intellectual property and must understand the consequences caused by the action.
Three technological important trends-the availability of data in digital form, the widespread use of computers and networks, and the rapid growth and proliferation of the World Wide Web and also the Internet-have profound suggestion for the way intellectual property (IP) is generated, allocated, an accessed by virtually every sector of society. The stakes are high in terms of both ideology and economics. Information technology has become the most important commodity the world has to offer. It is bought and sold, traded and stolen, just like any other commodity. However, each of these actions is rooted in the implication that information can be owned, i.e., information is a form of property. It is highly difficult to protect and prevent data against competition in the post employment and consultancy relationships. The law is unreservedly in preference of competition at the end of relationships and the best protection available is only available for a limited period of time. The advancement in the technology gives more hindrance to the existing intellectual property law.
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