Intellectual Property
Rights
7-Feb-2013
© Aberystwyth University and
Frank Bott
1
Types of rights
copyright
 patents
 confidential information
 trade marks
 design rights
 moral rights.
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7-Feb-2013
© Aberystwyth University and
Frank Bott
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Copyright
protects
 original literary, dramatic, musical
and artistic works;
 sound recordings, films, broadcasts
and cable transmissions;
 the typographical arrangement of
published editions.
Things protected are called "works".
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Software copyright
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The 1988 Copyright, Patents and Designs Act
states that the phrase 'literary work" includes a
table or compilation, a computer program and
preparatory design material for a computer
program.
The EU directive 91/250 states that “Member
States shall protect computer programs, by
copyright, as literary works. For the purposes of
this Directive, the term ‘computer programs’
shall include their preparatory design material.”
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© Aberystwyth University and
Frank Bott
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Owner’s rights
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Copyright gives five exclusive rights to the
owner of the copyright:
the right to copy the work;
the right to issue copies to the public;
the right to perform, play or show the work to
the public;
the right to broadcast the work or transmit it on
a cable service;
the right to make an adaptation of the work.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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How long do the rights last?
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In the EU, 70 years from the death of the
author (in the case of a literary or artistic
work, or software);
In USA, the same for works published
after 2002, but can be 95 years after the
date of publication in some cases, for
earlier works;
In Canada, 50 years from the death of
the author.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Database right (Copyright and rights
in databases regulations 1997)
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If a database is the author’s “own original
intellectual creation”, it is treated as a literary
work and subject to copyright protection.
If there has been “substantial investment in
obtaining, verifying or presenting the contents
of the database”, then it is also protected by
the database right. (This lasts for 15 years,
much less than copyright but much longer
than the database is likely to be useful.)
7-Feb-2013
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Frank Bott
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Who owns the copyright?
Copyright is owned by the author(s)
of the work except that:
 If the author is an employee and the
work is an original literary,
dramatic, musical or artistic work
created in the course of
employment, then the copyright
belongs to the employer.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Who owns the copyright?
(cont)
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An independent contractor is not an
employee and so will own the copyright in
work he does unless agreed otherwise.
Copyright can only be transferred in
writing.
Copyright does not need to be registered.
It comes into existence at the moment
the work is recorded, in writing or
otherwise.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Infringement of copyright
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Anyone who, without consent, does any of the
five things that are the exclusive right of the
owner of the copyright has committed primary
infringement of copyright.
Secondary infringement occurs when an
infringement is performed knowingly and in the
course of business.
Primary infringement is purely a civil matter.
Secondary infringement can be a criminal
offence.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Registering Copyright
In Britain and Europe, full copyright
protection comes into being
immediately the work is ‘fixed’, i.e.
recorded in some form.
 In the USA, protection is very
limited unless copyright has been
registered with the US Copyright
Office.
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7-Feb-2013
© Aberystwyth University and
Frank Bott
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When is a copy a copy?
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Copyright is breached by copying ‘the
whole or a substantial part of the work’.
‘Substantial’ can mean just a key part,
which could be quite small.
Non-literal copying, e.g. using the same
design to produce a similar system
written in a different language.
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Frank Bott
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Licensing
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A licence allows someone (the licensee) to use a
work for some or all purposes but the owner
retains ownership.
Licences can be exclusive or non-exclusive.
The licence may be for a fixed period or it may
be in perpetuity.
In an assignment, the copyright owner transfers
some or all of the rights of ownership to
someone else (the assignee).
7-Feb-2013
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Frank Bott
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Examples of licences
Retail software: a licence in perpetuity to use one
copy of the software on a computer of your
choice. Non-exclusive.
Professional packages: one year licence,
renewable, to run the software on a server with
a specified maximum number of simultaneous
users. Non-exclusive.
Marketing agreements: exclusive licence to sell
sub-licences in a specified geographical area.
7-Feb-2013
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Frank Bott
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Open source licences / free
software
An open source licence allows the
source code to be used, modified or
shared, subject to certain conditions.
It is not necessarily free.
Free software can be used without
payment but the source is not
necessarily available and modifying it
may not be permitted.
7-Feb-2013
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Frank Bott
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Assignment
Copyright may assigned for a limited
period or forever. Copyright in
future works may be assigned.
 Assignments must be in writing and
signed by the copyright owner.
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7-Feb-2013
© Aberystwyth University and
Frank Bott
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What you can do
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fair dealing, copying for:
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private study or research;
criticism or review
reporting current events
making back-up copies;
selling on;
decompilation for interoperability;
error correction.
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© Aberystwyth University and
Frank Bott
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How can copyright owners
enforce their rights?
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search and seizure;
injunctions – court orders restraining
people from infringing copyright;
damages;
claim for profits.
Powerful copyright owners often prevent
legal publication of copies by threatening
action that the publisher cannot afford to
defend.
7-Feb-2013
© Aberystwyth University and
Frank Bott
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Oroyan and Perreira
(Hawaii)
Selling modified X-boxes preloaded
with pirated games and videos.
Perreira sentenced to four months
imprisonment, four months of home
confinement and three years of
supervised release, on a charge of
criminal copyright infringement.
http://www.justice.gov/criminal/cybercrime/perreiraSent.html
3 March 2013
© Frank Bott and
Aberystwyth University
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CA v. Rocket Software
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complaint filed on 1 August 2007 in US District Court
in New York;
CA claimed $200 million for alleged infringement of
copyright in its tools for IBM DB2 users;
alleged that programmers working for CA were
recruited by Rocket and took copies of the software
with them, which were used in the development of
Rocket’s competing products.
settled out of court with Rocket agreeing to license
the copyright from CA, although not admitting fault.
http://www.ca.com/files/inthenews/spatt_ruling.pdf
3 March 2013
© Frank Bott and
Aberystwyth University
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Navitaire Inc v easyJet Airline Company and
Bulletproof Technologies Inc. England and
Wales High Court, 30 July 2004
easyJet were dissatisfied with the OpenRes
ticketless seat booking system that it had
bought from Navitaire;
easyJet commissioned Bulletproof to
produce a new system with the same
functionality and user interface;
Navitaire sued easyJet and Bulletproof for
breach of copyright.
3 March 2013
© Frank Bott and
Aberystwyth University
21
Specific instances in which it was claimed
that Navitaire’s copyright was infringed
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user keyboard commands
screen layouts and icons
business logic
database structure
copying of the OpenRes database for the
purpose of migrating the data.
http://rpc.oxfordjournals.org/content/123/4-6/111.full.pdf+html
(only from on campus)
http://www.twobirds.com/English/News/Articles/Pages/Software_co
pyright_infringement_claims.aspx
3 March 2013
© Frank Bott and
Aberystwyth University
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SAS Institute Inc v. World Programming
Ltd, EWHC (Chancery Division), 23 July
2010
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SAS is a world leader in data analysis and
statistical processing software, through its SAS
system.
WPL developed a system with the same
functionality and interfaces, which it started to
sell in competition to SAS. There was no
suggestion that the code was copied.
Described as a David against Goliath case.
3 March 2013
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Aberystwyth University
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SAS Allegations
SAS alleged that
 WPL had copied the manuals for the SAS System and
thereby infringed the copyright in the SAS Manuals.
 By copying the SAS manuals, WPL had indirectly copied
the programs thereby infringing the copyright in them.
 WPL had used a version of the SAS System known as the
Learning Edition in contravention of the terms of its
licences, and thereby both acted in breach of the relevant
contracts and infringed the copyright in the Learning
Edition.
 WPL had infringed the copyright in the SAS Manuals in
creating its own documentation.
3 March 2013
© Frank Bott and
Aberystwyth University
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Although, it found some infringements and agreed with
SAS over the breach of contract, the court dismissed the
important parts of the SAS claim.
However, the judge referred several issues to the
European Court of Justice for clarification:
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Does copyright in computer programs protect programming
languages from being copied?
Does copyright in computer programs protect interfaces from
being copied where this can be achieved without decompiling
the object code?
Does copyright in computer programs protect the functions of
the programs from being copied?
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1829.html
http://www.technollama.co.uk/landmark-softwarecopyright-case
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Aberystwyth University
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Cantor Fitzgerald International V Tradition (UK) Ltd
and others
EWHC High Court, Chancery Division, 15 April 1999
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Staff from the claimant had been recruited by
the defendant to write a system similar to the
one they had been writing for the defendant.
They had taken source code and other material
with them. Some of this was directly copied
and some was used in other ways.
The claimant alleged copyright infringement
and breach of confidence.
www.humphreys.co.uk/articles/software_1.htm
3 March 2013
© Frank Bott and
Aberystwyth University
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US Government v. Richard
O’Dwyer
Extradition sought for trial in the USA for criminal
copyright infringement.
O’Dwyer owned and operated the web site
TVshack.net, which provided links to sites hosting
unauthorised copies of copyright films and TV
programmes.
Funded by advertisements (mostly from US) to the
tune of around £230,000.
Text of judgement (January 2012):
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments
/us-v-odwyer-ruling.pdf
3 March 2013
© Frank Bott and
Aberystwyth University
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