Eisenberg, 2013

Intellectual Property Based on lecture and notes from

• Elisabeth Jones, Doctoral

Candidate, UW iSchool

• Prof. Adam D. Moore, UW

Philosophy and iSchool

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Agenda 1. Justifications for Intellectual Property (IP)

rights

2. Types of IP rights Copyright

Patent

Trademark

Trade Secret

3. Exercise re IP

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Key Terms

Copyright

Patent

Trade Secrets

Trademark

Creative Commons

Public Domain

Tangibility

Non-rivalrous

Excludability

Justifications

▫ Utilitarian

▫ Economic

▫ Moral

Fair Use

Limited Duration

First Sale

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Putting the “I” in IP

(it’s different from physical property)

Tangibility: IP doesn’t give you control over any physical item.

Excludability: IP, depending on the type, doesn’t necessarily allow you to exclude others from using the idea or creation you own, as you can with physical property.

Non-rivalrous consumption: If I steal your physical property, you can’t use it anymore - it’s “rivalrous.” If I steal your idea, though, you can go on using it.

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Justification

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What is the Purpose of intellectual

property laws – in the U.S.?

To protect your favorite indie band?

To make Britney Spears, Bill Gates, and others rich(er)?

To prevent college students from downloading stuff for free?

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Multiple Choice Test:

In the U.S., we grant IP rights because:

a) People deserve to benefit economically from their hard work, creativity, and innovation.

b) Of the common good – in order to benefit everyone in the long run.

c) Authors, inventors, and entrepreneurs put some of themselves into their work and deserve to control it.

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Ends & Means

U.S. Constitution, Article I, Section 8

Congress shall have the right...

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

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Ends Justify the Means

End: “To promote the Progress of Science and useful Arts”

Means: “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Not the other way around!

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So, Again: Why IP (in the U.S.)?

To create an incentive for innovation.

IP is a mechanism, not an end in itself.

Are there other ways to encourage innovation?

What makes you want to create things?

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Three Major Justifications

Utilitarian (U.S.): as an incentive to promote the common good

Economic (Lockean): … it takes effort and does not worsen anyone.

Moral (Personality Based): … authors and inventors put some of themselves into the work.

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Utilitarian (Incentive-Based)

Thomas Jefferson:

"The patent monopoly was not designed to secure the inventor his natural right in his discoveries. Rather, it was a reward, and inducement, to bring forth new knowledge."

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The Economic – Lockean (European) View

“…people are entitled to hold, as property, whatever they produce by their own initiative, intelligence, and industry." (Becker, page 32)

A person who clears ten acres of land, builds a house and a barn, cultivate crops and nurtures livestock, obtains full ownership rights by engaging in these activities. After years of such activity we would be outraged if someone came along tossed the possessor out on her ear and claimed that this farm was now his.

John Locke

(1632-1704)

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The Moral Right (European) View

Article 6 bis of the Berne Convention articulates the notion of "moral rights" that are included in continental European intellectual property law. It says,

“Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

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Moral – Personal IP Rights

The doctrine protects the personal rights of creators, as distinguished from their economic rights, and is generally known in France as "droits morals" or "moral rights."

These moral rights consist of the right to create and to publish in any form desired, the creator's right to claim the authorship of his work, the right to prevent any deformation, mutilation or other modification thereof, the right to withdraw and destroy the work, the prohibition against excessive criticism, and the prohibition against all other injuries to the creator's personality.

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Case Against IP Rights

The nature (non-rivalrous) of intellectual works grounds a prima facie case against rights to restrict access.

Since intellectual works can be "many places at once" (i.e., non-exclusive) and are not "consumed by their use" the burden of justification in on those who want IP rights. "Why should one person have the exclusive right to possess and use something that all people could possess and use concurrently?“

One reason for the widespread pirating of intellectual works is that many people think that restricting access to these works is unjustified.

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Justification: Summary

Justification for IP rights

Utilitarian – for the public good

Economic – rewards the labor of the creator

Moral – involves personality of the creator

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Justification: Summary

Justification against IP rights

Non-exclusive nature - intellectual works can

be "many places at once"

Non-rivalrous - not "consumed by their use"

Restricting access to works is unjustified.

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Types of IP Rights

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So how is downloading an album illegally different

from stealing a CD from a store? (or is it?)

?

=

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Four Types of IP

Copyright

Patent

Trademark

Trade Secret

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Copyrights Protects expression.

1976 Copyright Act determines the subject matter of copyright protection.

Section § 102: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression

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Copyright Covers

Literary works

Musical works, including any accompanying words

Dramatic works, including any accompanying music

Choreographic works and pantomimes

Pictorial, graphic, and sculptural works

Motion pictures and other audiovisual works

Sound recordings

Architectural works

Computer software

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Copyright Grants

Five Exclusive Rights

1. Right to reproduce

2. Right to adapt it or derive other works

3. Right to distribute copies

4. Right to display the work publicly

5. Right to perform it publicly.

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Copyright is also RESTRICTED

Idea/expression distinction — You cannot copyright an idea, only your expression of it.

▫ Einstein may copyright his article explaining general relativity, but he cannot copyright the ideas that make up the theory. If you expressed his theory in your own words you may be guilty of plagiarism, but you would not violate a copyright.

Limited Duration — In the US, all five copyrights expire 70 years after the author’s death or 95 years from publication (at least in theory)

First Sale – Once you purchase an expressive work, you have the right to resell it without permission (again, at least in theory)

Fair Use limited exception to the exclusive right granted by copyright law to the author of a creative work. Allows limited use of copyrighted material without acquiring permission from the rights holders.

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Fair Use (The public has rights too)

Judges consider 4 factors in considering whether an otherwise infringing use is “fair”:

▫ Purpose and character of the use

▫ Nature of the copyrighted work

▫ Amount and sustainability of the portion taken

▫ Effect of the use upon the potential market for the original.

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http://techliberation.com/2009/08/06/copyright-duration-and-the-mickey-mouse-curve

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The Digital Millennium

Copyright Act (DMCA), 1998

Huge piece of legislation

2 provisions especially important for Informatics:

▫ Safe Harbor

AKA why things like YouTube & Facebook still exist

Anti-Circumvention

▫ Copyright Office accepts applications for exemptions from anti-circumvention every 3 yrs

▫ Recent exemption: iPhone jailbreaks!

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Creative Commons www.creativecommons.org

Provides easy-to-understand licenses, so that you can shrea you work on terms that you choose.

Fewer restrictions than traditional copyright

http://creativecommons.org/licenses/

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Creative Commons - Exercise www.creativecommons.org

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Patents

Protects useful, new ideas.

Grants "the right to exclude others from making, using or selling the invention throughout the United States" for 20 years.

Broader in scope, but more limited in duration than copyright.

Patent Act requires usefulness, novelty, and non-obviousness of the subject matter.

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Patent

In return for public disclosure and the ensuing dissemination of information the patent holders is granted the following rights:

▫ the right to make

▫ the right to use

▫ the right to sell

▫ the right to authorize others to sell

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Patent Covers

A Process, such as a new approach to brewing beer or to depositing circuits on silicon.

An Article of Manufacture, such as a kit to identify an infectious disease or a machine, such as a new machine tool.

A Composition of Matter, such as a novel type of concrete or a new molecule.

New & Useful Improvements of the Above.

Any Distinct and New Variety of Plant that is Asexually Reproduced.

Any New, Original, and Ornamental Design for an article of manufacture.

From Jaffe & Lerner 2004: 27

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A Patent Application Must Pass 3

Tests

1. Utility

2. Novelty

3. Non-Obviousness

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A Few Patent Issues

Frivolous Patents

Patent Trolling

Chilling Effects www.chillingeffects.org

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Trademark

“protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods” (USPTO)

Protect consumers from being misled.

Ensure free competition by protecting the goodwill of the entity that owns the mark.

Unlike copyrights that deal with the marketplace of expressive ideas, trademarks deal with the marketplace of goods and services.

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Trademark

Can be renewed indefinitely.

Must be protected

Explicitly deals with commerce rather than ideas or expressions.

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Trade Secrets

Protects secrets that give companies competitive advantage.

Almost unlimited in terms of content or subject matter that may be protected.

Typically relies on private measures, rather than state action, to preserve exclusivity.

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The Opposite of ©: (or ®™, or “shhh…”)

THE PUBLIC DOMAIN

Items no longer protected by IP - but also, the aspects of creative work that IP does not protect.

“The public domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use.”

Jessica Litman, “The Public Domain,” Emory Law Journal 39, no. 4 (1990): 968.

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Summary

In the US, IP exists to promote innovation for the public good; protecting creators is the mechanism it uses to do that.

Copyright protects expression, not ideas.

▫ Fair use protects the public’s rights.

Patent protects ideas, not expression.

Trademarks prevent consumer confusion.

Trade Secret protects information that can be used for competitive advantage.

The Public Domain represents an intellectual commons that we are all free to draw on.

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Summary: You should be able to

answer/discuss:

What are the forms of intellectual property rights

What are the justifications for some form of intellectual property rights (e.g., copyright)?

Do you agree?

Do you violate intellectual property rights – ever?

If so, why?

Who is responsible for enforcing copyright?

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Some questions -

What are the justifications for some form of intellectual property rights (e.g., copyright)?

▫ Do you agree?

Do you violate intellectual property rights – ever?

▫ If so, why?

Who is responsible for enforcing IP?

▫ Creator?

▫ Consumer?

▫ Host (system)?

▫ Host (publisher)?

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Exercise

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Question -

Can you come to an agreement about how to handle IP for music sharing/use?

Consumer

Creator

Host (system)

Host (publisher)

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End