Online Intellectual Property

8/13/2019 Online Intellectual Property

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Online Intellectual Property Protection Rights 1

Online Intellectual Property Protection Rights

A.O. Aliyu and Adedayo Stephen

Energy Commission of Nigeria, Abuja. Nigeria

Abstract

Intellectual property IP protection is a way producing encouragements to create. According to

Lemley (2005), Intellectual property rights are an exception to that norm, and they are granted

only when and only to the extent that they are necessary to encourage invention (Lemley, 2005).

Free competition is normal. IP rights has been limited in time, scope, and granted only to authors

and inventors who met certain least requirements. As stated by (Moringiello & Fleming, 2008),

there are many IP cases on trademark, patent, and copyright law. Various approaches to

intellectual property protection rights are copyrights, patents, and trade secrets.

Keywords: intellectual property, protection rights, copyrights, patents, and trade secrets


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Intellectual Property

Intellectual property (IP) is a term referring to a number of different types of creations of

the mind for which property rights are recognized and the corresponding fields of law (Raysman,

Pisacreta, Adler, & Ostrow, 1999). The intellectual property law grants owner special rights to a

variety of assets, such as musical, literary, and artistic works; discoveries and inventions; and

words, phrases, symbols, and designs. Examples of common intellectual property are copyrights,

trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

Copyright

This is a right given to authors of original works, such as books, articles, movies, and

computer programs. It gives the exclusive permission to reproduce the work, make copied works,

or to present the work freely and also protect the form or expression of ideas (Kinsella, 2001).

International copyright law does not provide satisfactory resolution for international IP cases

since copyright law application is nationally limited (Frohlich, 2009). A copyright may not be

registered to obtain legal advantages but it comes automatically the moment the work is produce

in a physical medium of expression, and lasts for the life of the author or for a total of ninety-five

years in cases in which the employer owns the copyright (Kinsella, 2001).

Patent

A new or improved computer game is an example of a type of device which may be

patented. Patent is a property right in origination, that is, in devices or processes that perform a

useful function.It is permits the inventor a limited control on the manufacture, use, or sale of the

invention. It only grants to the patentee the right to prevent others from practicing the patented

invention. In most cases, not every innovation or discovery is patentable. Kinsella (2001) stated

that the U.S. Supreme Court has, for example, identified three categories of subject matter that

are not patentable, namely laws of nature, natural phenomena, and abstract ideas.


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Trade Secret

This entails any private recipe, device, or piece of information which gives its holder an

economical advantage so long as it remains secret (Kinsella, 2001). Trade secret laws are used

to check misuses of the trade secret. It is gotten by stating that the details of subject that is

secret. Trade secret theoretically may last indefinitely, although disclosure or independent

discovery may destroy it. Its major disadvantage is that a competitor who independently

invents the subject of anothers trade secret can obtain a patent on the device or process and

actually prevent the original inventor from using the invention (Kinsella, 2001).

Trademark

The word, phrase, symbol, or design is used to identifythe basis of goods or services

sold, and to differentiate them from other goods or services. According to Kinsella (2001),

trademark law prevents others from infringing upon the trademark by using confusingly or

similar marks to identify their own goods and services. Distinct from copyrights and patents,

trademark rights is permanent as long as the owner continues to use the mark. Common ethical

problem reported at second Life are intellectual property and trademark infringements

(Moringiello & Fleming, 2008, p. 9).

Schleimers (2001) Approaches to IP Protection

There are many copyright infringements crimes committed all over the internet through

file sharing system among strangers, the peer-to-peer file exchanges are the virus agents for

computer systems. As a result, electronic countermeasures are necessary to jam, inhibit, block,

investigate, and document online copyright infringement. (Schleimer, 2001). Release of viruses

on the file-sharing systems is a way of preventing infringement but innocent internet users would

be negatively affected. And such a malicious computer virus release to the Internet is acrime

under both state and federal law so this method cannot be effectively used (The computer fraud


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and abuse act , n.d).

Cease and Desist Programs

The purpose of a cease-and-desist software package is just to convey an electronic message

to virtual copyright offenders as a warning. According to Schleimer (2001),

These files would be posted on the peer-to-peer indices masquerading as desirable

content, such as a current hit song. The file contains an authoritarian voice that accuses

the downloader of criminal and civil copyright infringement and demands that he or she

immediately cease and desist.

Snitch Programs

A snitch program also could be distributed as a decoy file. Once inside the downloaders

system, it would gather personal details, such as the infringers name and address, a list of

infringed material found on the local hard drive, and the IP addresses of recipients of infringing

uploads (Schleimer, 2001). The snitched information could be retrieved each time the infringer

logs onto a file-sharing system and thereby posts the decoy file back onto the system (Schleimer,

2001).

Electronic Tags

It is possible for copyright owners to publish decoy files which contain unique a tag. If a

tag is in the file it proves that it had, at some point, been copied from an illegal file-sharing

system. The owner of a copyright has a statutory privilege to insert identification information in

digital copies to monitor infringement. (Schleimer, 2001)

Mass Decoy Postings

Web sites with high tendency of copyright infringement could be loaded with decoy files.

When decoys are posted, a long series effect of the file-sharing system would replicate and the

decoys could ultimately bury the real files. The infringers are being constantly bombarded with


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annoying cease and desist messages and drive infringers away from the illegal sites (Schleimer,

2001).

Handshake Programs

Another good countermeasure would be to identify specific infringing files posted on a file-

sharing system, initiate an upload of those particular files, and during the handshake that is when

the publishers computer is introducing itself. A program is insert into the publishers computer

so that blocks copying of the infringing file, deletes it, or replaces it with a cease-and-desist or

decoy program. The technological feasibility of such an offensive measure depends on the

existence of vulnerabilities in the receiving system (Schleimer, 2001).

Frohlichs (2009) Approaches

Frohlish considered IP protection from the International copyright law and conflicts of law

approaches. According to Frohlich (2009),

The exclusive rights granted to a copyright owner can only be exercised within the borders of

a given country. This national limitation of copyrights is in pronounced contrast to the

universal validity of other rights. This national limitation of copyrights is in pronounced

contrast to the universal validity of other rights (Frohlich, 2009, p. 853).

Since the main pillar of intellectual property law is territorially limited it applies to the application of

copyright law it does not provide enough and satisfactory resolution to international IP case

(Frohlich, 2009).

Choice-of-law Rules

Various laws apply to internet copyright infringement cases, these are; lex fori, lex loci delicti,

andlex protectionisrule. The lex forirule assumes application of the law of the country where

the court deciding the violation case is located. In contrast, the lex loci delictirule postulates

application of the law of the country where the infringing conduct has occurred. The lex

protectionisrule applies the law of the country for which IP protection is sought (Frohlich, 2009)


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Moringiello and Flemings (2008) Approaches.

As businesses continue to move to and grow in the electronic environment over the years,

courts are now adapting the common law and the existing statutes to the new Internet and

electronic communications transactions. New laws are passed on electronic transactions and

cyberspace to regulate the new ways of doing business and the courts, legislators, and regulators

are finding the electronic payment systems issues interesting (Moringiello & Fleming, 2008).

Most commonly apply Cyberspace laws to protect the online intellectual property are the

Digital Millennium Copyright Act and the Anti-cybersquatting Consumer Protection Act.

Contract law is an area in which courts are applying the common law to new challenges in the

electronic and online contracts (Moringiello & Fleming, 2008).

Conclusion

Intellectual property is a wide theory that covers several types of legally accepted rights

arising from some type of intellectual creativity, or that are otherwise related to ideas.

Frohlich

(2009)considered IP protection from the International copyright lawand conflicts of lawapproachesthat

is from the legal view. Similar, Moringiello and Fleming (2008) approaches is from the

electronic communication and cyberspace legal view. In contrast Schleimer (2001) considered

IP using electronic countermeasure technology to protect IP. There is therefore an urgent need to

pay more attention to the international and cyberspace Intellectual Property protection to

encourage and protect global innovations.


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References

Botterbusch, H. R., & Talab, R. S. (2008). Copyright and you: Ethical issues in Second Life.

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http://www.btlj.org/data/articles/24-2-d-Frohlich.pdf

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Lemley, M. A. (2005). Property, Intellectual Property, and Free Riding. .Retrieved from

http://www.utexas.edu/law/journals/tlr/abstracts/83/83Lemley.pdf

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