Week 3

Question 1

What is Intellectual Property (IP)?

Answer 1

Legal rights protecting creative works, inventions, and business goodwill (e.g. copyright, patents, trademarks).

Question 2

What does IP include

Answer 2

– Copyright
– Patents
– Trade marks
– Law of confidence
– Passing off
– Design rights
– Semiconductor regulations

Question 3

Why are Intellectual Propert Rights important?

Answer 3

Because large investments are required to finance research and development of products.

Without IPR, there would be little incentive to invest
time and money in developing original products.

Question 4

Copyright Law Origins

Answer 4

• Started with Statute of Anne (1709)
• Current law governed by Copyright, Designs and Patents Act 1988 (CDPA 1988)..

Question 5

What does copyright provide to the owner?

Answer 5

Exclusive rights to publish, perform, broadcast, adapt or copy the whole or a substantial part of a work, for a set period of time.

Question 6

What does copyright protect?

Answer 6

Expression of ideas in literary, artistic, musical works; lasts 70 years after death or 50 after creation.

Question 7

What is a Patent?

Answer 7

Exclusive right to an invention; granted if new, involves inventive step, and is industrially applicable (Patents Act 1977).

Question 8

Benefits of Patent System

Answer 8

Encourages innovation and investment; society gains when patents expire (after up to 20 years).

Question 9

What kinds of inventions can be protected by a patent?

Answer 9

• Products (i.e. a new kind of storage device)
• Processes (i.e. a new way of printing circuit boards)

Question 10

Law of Confidence

Answer 10

Common law protecting trade secrets; applies before copyright/patent eligibility.

Question 11

Design Rights

Answer 11

Statutory protection (e.g. Semiconductor Regulations 1989); covers ergonomic/microchip designs.

Question 12

What is a Trade Mark?

Answer 12

Any graphical sign distinguishing goods/services; registered under Trade Marks Act 1994.

Question 13

Passing Off

Answer 13

Civil law remedy for someone passing off their goods as those of another. (e.g., Apple Computer vs. Apple Records).

Question 14

Computer Software Issues in the past

Answer 14

• Until 1985, it was uncertain whether computer programs were protected by copyright in the U.K.
• The view of the courts was that only source code listings of computer programs were protected by copyright because they resembled written English.

Question 15

What happened in the Apple Computer Inc. vs. Computer Edge Pty Ltd (1984) case?

Answer 15

The defendant argued that a copy of Apple II OS in ‘Wombat’ clones was object code, and therefore not a literary work (this argument was accepted by the trial judge, but rejected on appeal).

Question 16

Where does CDPA 1988 provide copyright?

Answer 16

– original literary, dramatic, musical or artistic works
– sound recordings, films, broadcasts or cable programmes
– the typographical arrangement of published editions

Question 17

Key Copyright Owner Rights (CDPA 1988)

Answer 17

• Copy,
• Distribute,
• Perform,
• Adapt,
• Broadcast

Question 18

Infringement of Copyright

Answer 18

A person infringes copyright if he does a restricted act or authorise another to do a restricted act without the permission of the copyright owner.

Exceptions to infringement relating to computer programs have been introduced by the Copyright (Computer Programs) Regulations 1992.

Question 19

Remedies for Copyright Infringement

Answer 19

• Injunctions,
• Damages (including additional), and
• Criminal penalties.

Question 20

Who owns copyright in employment?

Answer 20

Usually the employer, unless otherwise agreed; freelancers retain it without contract.

Question 21

Computer works created by a human author

Answer 21

• Computer programs created by a human author are protected as a form of ‘literary work’.
• Copyright in a literary work (including computer programs) expires 70 years after the year in which the author dies.

Question 22

Computer-Generated Works

Answer 22

• Under the CDPA, a computer-generated work is one which is ‘generated by a computer in circumstances such that there is no human author’.
• Copyright in computer-generated works expires 50 years after the work was created.

Question 23

Who is the author and who is the owner of computer-generated works?

Answer 23

The author of a computer-generated work is ‘..the person by whom the arrangements necessary for the creation of the work are undertaken..’

For example, if a business has a computer
a system which automatically generates financial reports without any human intervention, the person who manages the computer facilities will be the author.

However, the organisation will be the copyright owner.

Question 24

What is a ‘substantial part’?

Answer 24

Any significant part, judged qualitatively, in which infringement can occur with copying of it

Question 25

Case: IBCOS Computers Ltd. vs. Barclays Mercantile Highland Finance Ltd. (1994)

Answer 25

Facts: An employee created software for IBCOS and agreed post-employment not to develop similar software. Later, he wrote new but functionally similar software for Barclays. Issue: IBCOS claimed copyright infringement. Key Points: - Similar spelling and punctuation errors in code supported copying. - Copyright extended to the structure and arrangement of code, not just the literal content. - Outcome: Court found literal copying; infringement involved 335 programs and design/layouts

Question 26

What is an adaptation (CDPA)?

Answer 26

Includes translating software between code/languages (e.g., decompilation).

Question 27

Decompilation Rights (Copyright Computer Program Regulations 1992; CCPR 1992)

Answer 27

Allowed for interoperability only; can't use for competitive products. The decompilation right would not apply if the developer intended to use the information obtained by decompilation to develop a competing product. Also, the decompilation right does not apply if the information required is readily available, e.g. the interface details have been published or made available at reasonable cost.

Question 28

Case: Atari v. Nintendo (1991)

Answer 28

Facts: Nintendo used a ‘lock-and-key’ system in the NES to block third-party software. Atari reverse-engineered the system using misrepresented legal grounds to access the code. Issue: Whether Atari’s actions infringed copyright. Key Points: - Atari argued the code was not copyrightable since only one method existed to implement compatibility. - The court disagreed; expression of code was protectable. - Outcome: Nintendo won; injunction granted.

Question 29

Non-literal Copying - 'Look and Feel'

Answer 29

Concerns copyright of program interfaces and structure beyond literal code.

Question 30

Case: Whelan Associates Inc. v Jaslow Dental Laboratories (1987)

Answer 30

Facts: Jaslow hired Whelan to write software for dental offices. Later, he developed a similar PC version himself. Issue: Whether the structure and design of the program (not just code) were protected. Key Points: - Structure = expression, not idea, because other structures could have been used. - ‘Look and feel’ and shared program architecture raised suspicion. - Outcome: Court sided with Whelan; infringement confirmed.

Question 31

Case: Computer Associates v. Altai (1992)

Answer 31

Facts: Altai’s software included a component built by a former employee of Computer Associates, who reused interface knowledge. Issue: Whether non-literal copying of interface components was infringement. Key Points: - Introduced three-step test for non-literal copying: 1. Abstraction – Identify structure. 2. Filtration – Remove unprotectable elements. 3. Comparison – Compare remaining material. - Outcome: New version didn't infringe; precedent set for software copyright analysis.

Question 32

Case: Apple Computer Corp. v. Microsoft Corp. and Hewlett-Packard (1988–1992)

Answer 32

Facts: Apple sued Microsoft and HP, alleging that their software (Windows, New Wave) mimicked the ‘look and feel’ of the Macintosh interface. Issue: Can the overall GUI style be copyrighted? Key Points: - Differences at the graphic level, but Apple argued the overall look was copied. - Key legal question: Can unprotectable individual elements form a protected whole? - Outcome: Eventually settled in 1997 after Microsoft purchased Apple stock; no final legal precedent set.

Question 33

Case: John Richardson Computers Ltd. v. Flanders and Chemtech Ltd. (1993)

Answer 33

Facts: Flanders developed similar software after working with Richardson; the new version was for a different platform (IBM vs. BBC). Issue: Whether non-literal similarities between two programs infringed copyright. Key Points: - Used the Altai test. - Non-literal similarities were considered substantial. - Outcome: Court ruled in favor of Richardson; strengthened non-literal copyright protection.

Question 34

Freelance Copyright Ownership

Answer 34

Freelancer retains rights unless contract assigns them; must clarify in writing.

Question 35

Copyright & Electronic Publishing

Answer 35

Online sharing doesn't void copyright; ISPs can be liable; terms must be clear.

Question 36

Case: The Shetland Times v. The Shetland News (1996)

Answer 36

Facts: Shetland Times sued Shetland News for copyright infringement when the latter set up hypertext links connecting its website to that of the Shetland Times. Issue: Does hyperlinking constitute copyright infringement? Key Points: - Issue of whether URLs and headlines were protected as literary works. - Interim injunction granted; later settled out of court. - Shetland News agreed to attribute links with the logo and label.

Question 37

Implications for Software Developers

Answer 37

- Avoid non-literal copying, - Document work, - Beware of ex-employee IP use.

Question 38

Are Computer Programs Patentable?

Answer 38

Excluded 'as such' in EU; allowed if part of broader patentable invention.

Question 39

Case: Stac Electronics v. Microsoft (1994)

Answer 39

Facts: Microsoft allegedly incorporated Stac’s patented compression algorithm into MS-DOS after failed negotiations. Issue: Patent infringement. Key Points: - Microsoft couldn’t prove the algorithm was public domain. - Stac was awarded damages; later settled for $43M + stock purchase. - Illustrates: Value of software patents in the U.S.

Question 40

Law of Confidence Requirements

Answer 40

1) Must be confidential 2) Shared in confidence 3) Used without authorisation.

Question 41

Obligations of Confidence

Answer 41

May arise via contract or implied duty (e.g., client-lawyer relationship).

Question 42

Employees & Law of Confidence

Answer 42

Ex-employees can use general knowledge but not trade secrets or IP.

Question 43

Case: Northern Office Microcomputers Ltd. v. Rosenstein (1982)

Answer 43

Facts: Programmer wrote similar software post-employment. Issue: Protection under the law of confidence and copyright. Key Points: - Court ruled programmers cannot be forced to forget their skills or mundane knowledge. - However, exact copying or use of novel concepts may be protected. - Outcome: Balanced approach between employer rights and fair competition.

Question 44

Hackers and Confidence Law

Answer 44

Hackers accessing confidential data may breach confidence law (and criminal law).

Question 45

Remedies for Breach of Confidence

Answer 45

Injunctions and damages if confidentiality is violated.