Intellectual property (IP) is a general term used to describe a creation of the mind (hence, intellectual) or a creative activity. A creation can be in various forms, including in the form of a written or recorded piece, design, invention, image, or even a name. Intellectual property enables those who have created any of these things to own them as they might own physical property. The term is also sometimes used to describe the various legal rights the creator of a piece of work has in the work. Typically, intellectual property law says that anyone who owns the intellectual property to a creation can control when, how, and where the creation is used and, if they choose to, do this in exchange for a reward. This means that not seeking the permission of an IP owner and therefore failing to give him/her the opportunity to exercise his/her rights is breaking the law.
Intellectual property laws are not readily straightforward to deal with. For example, how they are enforced vary widely from country to country. This is one reason various attempts have been made internationally to unify them. The establishment in 1967 of the World Intellectual Property Organization (WIPO) is one such attempt. The organization represents a forum for different member countries to create and unify rules and practices that ensure that the rights of creators and owners of intellectual property rights are recognized, protected, and rewarded worldwide.
Intellectual property covers numerous types of rights, which are commonly grouped into copyright and industrial property. Copyright covers the rights in both published and unpublished creative, intellectual, or artistic works, while industrial property concerns the rights in the category of creations relating to industrial products, the main ones of which are patents, designs, and trademarks, all of which are relevant in various Web projects, depending on the nature of project.
Copyright is the exclusive right to determine what is done with a literary, musical, or artistic work. The owner of the copyright to a book, for example, has the exclusive right to reproduce, publish, sell, or distribute it. However, copyright only protects the form of expression of an idea, not the idea itself. The form of expression, in this case, relates to how elements such as words, musical notes, shapes, colors, and even inventions are arranged to create a unique piece. So, for example, a person cannot own the copyright to the idea of making people dance, but can own the copyright to a specific arrangement of musical notes that they have created to make people dance.
The concept of copyright has its roots in the advent, in the 1430s, of printing technology that made it possible for the first time to mass-produce and widely distribute literary works. Along with this, naturally, also came the practices of unauthorized reproduction and distribution of peoples’ literary works. To control this, the Worshipful Company of Stationers and Newspaper Makers (also known as the Stationers’ Company) was granted the monopoly of producing and distributing literary works around 1557. The way this worked was that the Stationers’ Company bought manuscripts from authors and, after the sale, the company decided what to do with the manuscript and kept all profits from it. One of the side-effects of this practice was that authors had no control over what happened to their works, nor were they able to benefit financially as much as they should from them. The Copyright Act of 1709 (also known as the Statute of Anne—named after Queen Anne of Great Britain who passed the act) was designed primarily to address this seemingly unfair situation and also serve as inducement to authors to produce more works, knowing that they would profit fairly from them. The act gave the exclusive right of printing literary works to authors and/or those authorized by them to do so.
This principle was then subsequently extended to other kinds of creative works. Not only this, different nations around the world came to introduce their own copyright acts, which were sometimes significantly different from one country to another. The first attempt to establish a framework to internationally harmonize these various acts was in the form of the Berne Convention for the Protection of Literary and Artistic Works in 1886. Several copyright conventions and treaties then followed, including the Universal Copyright Convention (UCC) of 1952, which was created as an alternative for countries that did not like the terms of the Berne Convention, and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961. In essence, these conventions and treaties seek continually to refine and harmonize intellectual property laws, especially is relation to advances in technology, which often bring about new ways of expressing ideas and creativity, and new modes of communicating and distributing them.
Under the original Berne Convention, copyright protection extends to all original forms of literary and artistic works, irrespective of whether they are of good or bad quality. The Convention also lists various categories of works which member countries, and other countries, should protect under their copyright laws, most of which can be incorporated in a Web application in one form or another. They include the following, all of which can be relevant to Web projects, given the presence of the Web in businesses:
- Literary works (e.g., poems, theses, lectures, sermons).
- Musical works (e.g., musical compositions, including accompanying words).
- Dramatic works (e.g., plays, dances).
- Sound recordings.
- Cinematographic and other audiovisual works.
- Radio and television broadcasts.
- Artistic works (e.g., paintings, sculptures, drawings, logos).
- Lithographic works.
- Choreographic works (such as dance routines and ballet).
- Photographic works.
- Collections of literary and artistic works (such as encyclopedia).
- Translations and arrangements of literary and artistic works.
- Illustrations, maps, three-dimensional works, and so on.
While the Berne Convention focused on the outputs from the technologies of the time, which were analogue, subsequent intellectual property treaties extended copyright protection to different types of digital outputs. For example, the distribution of copyright materials over digital networks, particularly the Internet, is covered by the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), also sometimes referred to as the Internet Treaties. Also covered by some of these treaties is the copyright protection for the elements of intellectual creativity inherent in the uniqueness of the design, arrangement, or data selection process in a database. Essentially, database rights prevent acts like the removal and re-use of whole or substantial part of the contents of a database. This is without compromising the rights in the individual contents of the database.
Even Web productions are judged to involve creative effort and therefore deserving of copyright protection. Like for database rights, the rationale is that, although the individual components of a Web production are themselves creative works and are provided protection under copyright laws, putting them together in a unique way in a Web production can be regarded as an original form of expression of ideas and creativity. Some countries, including the UK, also grant a right to copy-protected devices. For example, a copy-protected device, such as CD, is protected against people copying its content, disabling the copy-protection mechanism, or making or selling devices, or providing services, to disable it. Copyright may even apply by virtue of publishing a work, whether in analogue or digital form. For example, EU Directive 93/98/EEC defines publication right for European Union members and gives copyright to the person who first publishes a previously unpublished literary, dramatic, musical, artistic, or cinematographic work after its original copyright has expired. Protection extends to 25 years, starting from publication.
All in all, the way the unification of rights through conventions and treaties works across countries is that countries that are signatories to them try to adhere to the framework set out, and the conventions and treaties, in turn, ensure that there is enough room for individual countries to incorporate their own additional protection terms.
1.1. When Copyright Protection Begins
In most member countries of the Berne Union, and many other countries, the instance a work is put into a tangible form—that is, into a form that can be heard, seen, or touched—the author automatically owns all copyrights in the work and any derivative works, unless, or until he/she disclaims them, or they expire. In some countries, such as the US, although copyright protection is automatic, a copyright has to be registered before an infringement lawsuit can be filed in court in the event of an infringement on the copyright. Registration is intended to serve as a public record of the facts about a copyright and can be used by an author as proof of copyright.
One of the ways the term “tangible form” can be explained is that you cannot, for example, own a copyright to a design idea you have in your head, even if you have told someone about it. You have to either put it on paper or in some other medium for it to be in tangible form. After the design is in a tangible form, you can put a copyright notice on it to show that you own the copyright. The common way to do this is to put “Copyright ©,” year, and name at the bottom of the paper, or on the label of the recording medium, thus, Copyright © 2016 Joe Smith. The © symbol is known as the copyright symbol, but its use is not universal. For example, (c) and (C) are used in some countries. The notice means that the design was created in 2016 by Joe Smith. If later, in 2015, the design was modified, the notice can read “Copyright © 2016, 2017 Joe Smith ” on the new version to show that the design was first created in 2016 and then modified in 2017. You probably have seen similar notices at the bottom of many Web pages. However, the © symbol is really not a legally recognized symbol. It is also not obligatory to put a copyright notice on a work for the work to be protected by copyright. It is good practice to use it, however, as
- it serves to inform that the work is in copyright and of the owner, and
- it deters infringement.
Where to put the copyright notice depends on whether or not a work is separable. In the case of a website, the notice can be placed on each page. In addition to the copyright protection, there are other rights protections. For example, for musical compositions, etc., there is, when sound recordings are involved, another type of right that relates to the sound recordings themselves. This is known as a phonogram right, which is a category of rights known as related rights, discussed later in this chapter. A phonogram right notice is commonly denoted by the “P in a circle” symbol: ®. That is why notices containing both the © and ® symbols may be found on music CDs or vinyl records. Using the earlier example, commonly used formats include “Copyright © 2016 Joe Smith, ® 2016 Joe Smith,” and “© & ® 2016 Joe Smith.”
Naturally, for legal purposes, it is important to be able to prove that something was actually created when the creator said it was, and there are various ways this is done. The most common is for the creator to put the copy of the creation in an envelope, post it to himself/herself through registered or special mail, and then leave it unopened. The postmark serves as date of creation and therefore the date that copyright protection begins. This approach can be used for any type of work. For example, video, animation, software, or copies of working files and the final version could be put on a storage medium (e.g., CD, DVD, Blu-ray disc, or memory stick) and then copyrighted in this way. Copyrighting both copies of working files and the final version is necessary essentially to provide a progress history of a work and therefore better proof of ownership.
Additional statements can also be added to a copyright notice in the form of extended notice to specify exactly what is covered. This could be, for example, in the form of a simple statement, such as “All rights reserved,” or a description of how and for what a work may be used, or not be used, such as “Permission granted to reproduce for personal and educational use only. Commercial copying, hiring, or lending is prohibited”
Another way a work may be copyrighted is registering it with a copyright service. In the UK, for example, there is the UK Copyright Service. When this is done, the work is given a license number. If a work is registered, a notice of registration can also be put with the work as a further deterrent from unauthorized usage. This notice can be put after or below the copyright notice, including the license number. Here is an example of a notice of registration: “This work is registered with the UK Copyright Service. Registration Number: 12345.” Depositing a work with a solicitor or a bank are also valid ways of proving copyright. Of course, as in posting such work to yourself, it needs to be sealed and left unopened. Keeping a track record of the development of a work, and leaving deliberate and unique signs or patterns in some types of works, such as computer programs, too, can provide additional proof, should it ever be necessary to make a claim.
1.2. Duration of Copyright
The duration of copyright is not indefinite and also varies from country to country, largely because, as mentioned before, different countries have differently crafted copyright laws. In countries that are signatories to the Berne Convention, and many other countries, the duration of copyright in a work is generally the life of the authors, plus 50 years after their death. The Berne convention also stipulates a framework for the duration of copyright for what were deemed unusual works, such as posthumous, anonymous, and cinematographic works, all of which may be relevant to Web production. The stipulations are for the following copyright durations:
- For a cinematographic work, 50 years from the time the work is created or, if the work is made public within that period, 50 years from the date the work is made public by the author.
- For posthumous work, if copyright exists at the death of author or at the death of the last author in joint authorship, but the work has never been made public, then copyright exists until the work is made public, plus 50 years from the date it is made public.
- For anonymous work, 50 years after the work is made public.
- For artistic work, a minimum of 25 years from the date of creation.
- For publication right, 25 years from the date of publication.
- For database rights, 15 years from the year it is made accessible to the public, or the time of modification.
Many countries’ copyright laws typically specify longer periods than are described above. For example, in EU countries, US, and many other countries, copyright for most works extend until 70 years after the death of the author. The EU Directive 93/96/EEC extends the copyright protection for films (i.e., cinematographic and other audiovisual works) to 70 years after the death of the last of the director, the screenplay writer, the script writer, and the composer of the music specially written for the film. The same directive extends the protection for photographic works to 70 years after the death of the creator, except photographs that are taken automatically, such as passports, in which case, sui generis related rights may be applied. The term sui generis is a Latin expression that means “of its own kind” and sui generis rights are special types of rights.
Extending copyright protection for as long as possible after the death of authors is a very sensible thing, in that it enables the successors of copyright owners to benefit economically from the copyright. In all cases, when the copyright in a work expires, that is, when a work is out of copyright, the work goes in the public domain, and from there on, the public may use or exploit it without permission. However, a work can be in the public domain and yet not be out of copyright. This typically happens when the person who owns the copyright in a work puts the work in the public domain so that people can use it with or without conditions. The implication of this is that caution is necessary when using works in the public domain. In particular, it is important to be clear about any conditions attached to their use, such as whether they can be used where you want to use them, especially as a work may be out of copyright in one country and not in another. A common condition is for a work to be free to use for noncommercial purposes, but not for commercial purposes without explicit permission. The rule of thumb is to assume that a work is not completely free to use, unless you know otherwise.
1.3. Rights Protected by Copyright Laws
According to the Berne Convention, when authors are said to own the copyright in their works, this automatically means that they can use it as they wish, as long as it is done within the sense of what is legally permissible in the relevant society. This means, for example, that authors may not use their works to harm others, physically or otherwise. As well as granting them the rights to use their works as they wish, the Berne Convention grants to authors exclusive rights to permit others to use their work; and even more, any author from a country that is a member of the Berne Union has the same rights in other member countries as the nationals of those countries, including all the rights granted by the Berne Convention, if not already in the national laws.
The exclusive rights granted to a copyright owner have been designed with two main goals in mind. One is economic and the other is moral- based; so, rights generally fall under economic and moral rights.
1.3.1. Economic Rights
Economic rights are meant to enable authors to derive financial benefits from the use of their works. The activities prohibited without the permission of the author of a work include:
- Reproduction of the work in various forms.
- Distribution, sale, lending, leasing, rental, or any transfer of ownership of copies.
- Importation of copies. This is in order to protect the interest of the copyright owner in a particular country.
- Public display, performance, or broadcast of part or whole, or communication to the public, such as over the Internet. Even use in a private house is prohibited, if a substantial amount of people who are outside the usual circle of a family is present.
- Translation into other languages.
- Recitation or translation.
- Arrangements or adaptation, such as from novel to movies.
1.3.2. Moral Rights
Moral rights were not added to the list of rights until the Berne Convention for the Protection of Literary and Artistic Works of 1928. The concept emerged from continental Europe and is premised on the notion that a work is an extension of the author’s personality and therefore the author has interests in how the work is used. Moral rights, therefore, enable authors to control how their works are used, so that the trueness, or essential quality, or meaning of the works is preserved, even when they no longer own the copyright. Essentially, authors have the moral rights to specify what may or may not be done to their works. However, unlike copyright, moral rights are not usually transferrable; only the author and his/her heirs can exert them. Four specific rights are protected under moral rights:
- The right of attribution, which gives the right to claim authorship, such as the right to be acknowledged or credited for a work when used, or when it appears in another work.
- The right of disclosure, which gives the author the right to specify when and how a work should be presented in public, including whether anonymously or pseudonymously (i.e., with a fictitious name).
- The right of integrity, which gives the right to prevent any treatment of a work, which might be derogatory to the work, or the author’s reputation or honor, including destruction, mutilation, or distortion of the work.
- The right to refuse attribution for a work.
While most countries that are signatories of the Berne Convention recognize moral rights as part of copyright laws, or agree with the concept, the scope of implementation of moral rights varies across countries. For example, in US, there is no specific legislation for moral rights. Rather, they are covered under various laws, including copyright laws, and only visual arts, such as paintings and sculptures, are explicitly granted moral rights, through the Visual Artist’s Rights Act (VARA). On the other hand, in the UK, moral rights are recognized, but not as strictly as in some other EU countries, such as France. Nevertheless, the UK copyright laws grant the authors of literary, dramatic, musical, and artistic works, and film directors, moral rights, although the owners can waive them, if they choose to do so.
As a Web designer, it is important to understand the implications of moral rights in Web design. Just because the authorization has been obtained to use a piece of work does not mean that it can be used in anyway. For example, a piece of music may not be mutilated or used in a context that may compromise the composer’s position, such as combining it with degrading images or using it for some cause to which he/she is not sympathetic, without his/her consent. Whether you do these things or your website is intended to allow them to be done, you might be found to be infringing on the author’s moral rights or aiding others to do so. The same is the case with the treatment of images. Even a treatment that seems as minor as coloring a black and white original image may result in an infringement of moral rights. This is why an author might want to know how a work will be used before granting permission. Some would even ask to provide a sample of how the work will be used; so, it is useful to be clear about how a media is going to be used when clearing it. In general, most authors are happy for their creations to be used, in return for license fee or just an acknowledgment, as long as the usage is in good light, or for a cause with which they empathize.
1.4. Limitations on Rights
Although copyright owners have the exclusive rights to say when and how their work must be used, there are circumstances in which there are limitations to these rights.
They are called exceptions. In copyright laws, limitations are classified mainly as free use (also known as fair use, fair deal, or fair practice) and nonvoluntary licenses, both of which are relevant in Web production.
1.4.1. Free Use
Free use limitation specifies that works can be used in certain circumstances without authorization from the authors and without compensating them, on the condition that (1) the use complies with the terms of fair dealing, (2) the use is appropriate and not excessive, and (3) the source of the material and the name of the author are mentioned. Circumstances where free use exception applies include:
- When part of a work, such as quotation or excerpt, is used in news reporting.
- When the use of a part of a work is incidental, such as when a protected work is unintentionally caught in the background of a private video shoot. Of course, if the video is to be made public, then the permission of the owner of the work may be needed; or the offending parts may be blurred or taken out, as commonly done in documentaries.
- When a work is used privately, or for educational or research purposes.
- When versions of a work, such as Braille or enlarged versions, are produced for use with the blind or visually impaired.
The free-use exception is designed generally to ensure that copyright laws are not so strict that they prevent the use of works, even when this is in the interest of the public, or cause people to be penalized unduly, say, for using something briefly in error. However, what is fair use can be difficult to determine sometimes, particularly when the rights protection given to works in digital form conflict with what traditionally is fair use. A common example is how creating a photomontage from image cuttings from different copyrighted works, such as magazines and newspaper, can be considered fair use, while scanning the same images and creating a photomontage in a computer may amount to an infringement of copyright.
In opposition to the restrictions imposed by copyright, including lack of clarity of fair use, and particularly digital rights management (DRM) that often disallows copying of any kind, certain nonprofit organizations have since emerged that provide alternatives to typical copyright laws. Their collective belief is that copyright tends to stifle creativity and adequate exploitation of people’s works and there are many copyright owners who would like more people to make certain uses of their works without having to come to them for permissions, provided they comply with stipulated conditions of use, particularly the one that the works are not to be used for commercial purposes. The motto of these organizations, in general, can be said to be Some Rights Reserved rather than All Rights Reserved and the general aim is to communicate this principle to as many people as possible on behalf of willing copyright owners. Examples of these organizations are Creative Commons, Free Art License, and MIT License. These organizations promote the principle of copyleft or share-alike, which generally permits people to reproduce, modify, or distribute a work as long as any resulting work is made available under the same principle. So, rather than put the conventional copyright symbol on a work, an author who accepts this principle uses alternative symbols instead. For example, CC in a circle is used for Creative Common license.
1.4.2. Nonvoluntary License
Nonvoluntary license exception is so called because the authorization to use a work is not necessarily voluntary on the part of the copyright owner. It specifies that a work can be used in certain circumstances without the owner’s authorization, just as in free use, except that payment is required to be made to the owner for the use. Circumstances in which this limitation applies include when a new technology has been invented that is important for providing essential services to the public and there are fears that the owner might refuse to grant permission to others to progress it. In such a case, the national legislator, or equivalence, might evoke the limitation. A good example of such a technology is the Internet, although the Internet was never copyright protected in the first place, since it began life as a government project.
1.4.3. Other Rights Exceptions
Other situations in which rights are limited or authors are compelled to relinquish their rights include employer-employee, contractor- subcontractor, and author-publisher situations, in which terms are usually included in contracts to stipulate or confirm who owns what rights. For example, in employer-employee situations, if the creator of a work is employed for the purpose of creating the work, then it is the employer who owns the copyright in the work. This is really a kind of transfer of rights. If this is not stipulated in employment contract, then the creator may own the copyright.
In contrast, in contractor-subcontractor situations, the subcontractor owns the copyright in the works created, even if he/she is paid for the work, unless otherwise stated in the contract. For example, if someone pays a photographer to photograph something for them, the photographer owns the copyright in the photograph and a reproduction without his/her permission is an infringement of copyright. This is why a photographer would typically give prints rather than film negatives (in the days of film-based photography) or digital files.
In author-publisher situations, although authors automatically own copyright, they may transfer it to a publisher they feel can better exploit their work on their behalf, in return for which they are paid money, known as royalties, according to how successfully the work is exploited. This is another form of authors transferring their rights and may be done in either of two ways: assignment or licensing. Under assignment, some or all rights covered under copyright may be transferred. When this is done, the party to which rights are assigned becomes the new copyright owner. In contrast, some countries only allow rights to be licensed. Under licensing, authors retain ownership but may transfer some rights to others to do specific things and for a specified amount of time. For example, the owner of the copyright in a novel can license the right to publish the novel to one party and the right to turn it into a movie to another. Of course, authors may also transfer all rights to one party under licensing, just as under assignment; the main difference is that it is not automatic.
1.5. Related Rights
Sometimes, in order for a creation to reach the form that can be published, other people are needed to contribute in the way of talents, and so on. For example, a person might write a play, but actors are needed to interpret and perform the play. While the writer owns the copyright in the play, related rights are designed to protect the elements of creativity that exist in the contributions of people, such as actors, who bring the play to life. The Rome Convention first recognized these rights, which were later extended to cover more acts by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and WPPT. Typically, those who are meant to benefit from these rights include performers, phonogram (music) producers, film producers, and broadcasting organizations in the form of performers’ rights, phonogram producers’ rights, film producers’ rights, and broadcasting organizations’ rights, respectively. As with copyright laws, there are limitations to these rights when protected works are used for purposes such as teaching, research, and private use, in which case, they are waived. Also, rights covered vary from country to country.
1.5.1. Performers’ Rights
Performers’ rights are different from Performing Rights, which are part of copyright law that allow authors to object to the performance of their work in public. Performers’ rights allow performers to prevent people from doing certain acts with their performance without their permission, as well as the rights to be paid fairly when permission is given. These acts include the recording or broadcasting of their performance, the communication of their live performance to the public, the reproduction of the recordings of their performance, or the rental of such recordings. Some countries, such as EU countries, also grant performers the moral rights over whether or not their name should be associated with a performance, or to stop their performance from being adapted in a way they feel portrays them badly. According to TRIPS, the rights of performers are protected for a minimum of 50 years from the year of performance. In the EU, these rights are protected for 50 years from the year of performance or, if recorded, 50 years from the year the recording is published.
1.5.2. Phonogram Producers’ Rights
Phonogram producers have the rights to prevent acts such as the unauthorized reproduction, rental, distribution, or importation of their recordings or copies, as well as the right to be paid fairly for the broadcast or communication to the public of their recordings, once they have been published. A phonogram these days generally refers to any audio recording on any of a variety of medium, including discs, tapes, and vinyl.
Typically, in order to protect a recording, all that is required is that each copy carries, as shown earlier, a P in a circle symbol, thus ®, then the year of publication and the name of the owner of the producer’s rights, not the name of the writer. The duration of producers’ rights over a phonogram, according to TRIPS, is a minimum of 50 years from the year of its creation. In the EU, the duration is a minimum of 50 years from the year of creation, if unpublished, or 50 years from the year it is first published. In the US, the situation is more complex. For example, protection generally lasts for 70 years after death, except for “work made for hire,” in which case, protection lasts for the shorter of 95 years after publication or 125 years after creation. A “work made for hire” is described as work created within employment or specially commissioned for use, for example, as part of other works, a translation, or an instructional text.
1.5.3. Film Producers’ Rights
Film producers, just like phonogram producers, make creative decisions about productions; in this case, about the completion and quality of films. Accordingly, film producers have rights in the master copies of the films or other audiovisual works they have produced. The rights are similar to those of phonogram producers and can be used to prevent direct or indirect reproduction, distribution, rental, or public showing of the film. In the EU, the rights last for 50 years from the year a film is made or first released.
1.5.4. Broadcasting Organizations’ Rights
Broadcasting organizations have the rights to prevent the re-broadcast, recording, or reproduction of their broadcast to the public where fees are charged. The duration for broadcasters’ rights is a minimum of 25 years from the year of the first broadcast. In the EU, this duration is extended to 50 years.
1.5.5. Sui Generis Database Right
As well as copyright protection for databases, protection for them is extended in some countries. For example, EU Directive 96/9/EC extends protection to include sui generis database right, which recognizes the substantial investment made in the obtaining, verification, or presentation of the contents of a database and provides protection against their unauthorized extraction and re-use. The duration of the protection is 15 years, and for a dynamic database, the right is renewed each time substantial investment occurs. Even if a database does not qualify for copyright protection, it may still have this right. Of course, a database may also have both rights.
2. Industrial Property
Industrial property describes rights relating mainly to inventions, product designs, and unique marks or signs intended to distinguish products or services. Unlike copyright, some of these rights are not automatic and have to be registered for protection to take effect. Given that some aspects of Web design/development, such as a special algorithm for doing something, qualify for patent, it is useful for a Web designer/developer to be aware of this type of rights.
A patent is a set of rights designed to protect a new and useful invention by protecting features, such as what the invention does, how it does it, what it is made of, and how it is made. It is granted for only a period of time, in return for which inventors must disclose the details of their inventions to the public so that the society can benefit from it, either in its original or improved form. The requirements for granting patent and the extent of the rights granted vary widely from country to country, depending on national laws and international treaties. However, there are more similarities than differences.
Generally, in order for an invention to be considered worthy of patent, there must be the element of newness and human intervention. For example, digging up a substance that no one has ever seen before from the ground does not qualify as an invention. However, treating it with some chemicals and producing a new substance can be described as an invention. Some inventions do not necessarily solve any obvious problems, but are ideas or the representations of ideas. Indeed, according to patent law, an invention does not have to be in physical form for it to get protection. Consequently, there is more than one type of patent. The WIPO describes two types: product patent and process patent. A product patent might be, for example, for a new type of metal, while a process patent might be for a new process of producing a metal that is not necessarily a new metal. In the case of a website, the product is the website and process is the new and useful thing the website does. Google homepage design, for example, has a patent. Some countries describe their types of patent differently. The US, for instance, describes three types: design (e.g., website design), utility (what website does), and plant patents.
Unlike copyright, patent is not automatic. Patent law requires that an application is submitted to the patent office, along with a fee, providing the details of the invention and highlighting what is new about it by comparing it to anything that already exists in the relevant fields. The details must be such that they allow the production of the invention by others. The invention is then reviewed by qualified people. The preparation of an application for patent is an undertaking that requires the knowledge of the patent law, so, legal help is often essential. For an invention to qualify for a patent, it must meet certain set of criteria. This can be slightly different from country to country. For example, the EU only considers computer programs that are key to technical processes patentable, whereas in the US, patents can be granted to any type of computer program. However, in spite of the variations from country to country, the general requirements are that an invention must
- Be novel, that is, it must not have something already known in the relevant field. In order words, prior art must not exist.
- Be producible and of practical use, either to the general public or some industry.
- Show an inventive step that is not already known to people in the field.
- Be within the scope of subject matter the patent law of a country allows. Typically, it must not be in such subject matter as scientific or mathematical discovery, theory or method, literary, dramatic, musical or artistic work, medical treatment or diagnosis, some computer programs, animal or plant varieties, ways of doing mental acts, playing games or transacting business, or be anything that is detrimental to public order, morals, or health. This list is, of course, not exhaustive. Visiting a patent office or its website can usually provide a more detailed list. For example, information on UK’s patent law is available on the Website of UK Intellectual Property Office.
Once patent has been granted to an invention, it becomes available to the public, and those who wish to exploit it commercially can do so, but not without the permission of the patentee (i.e., the patent holder). Typically, a patentee grants permission to use an invention, that is, licenses it, in return for royalty. This arrangement enables inventors to profit from their inventions, thereby encouraging more inventions.
Patent protection typically lasts 20 years, but in some countries, there can be additional terms. In the UK, for example, renewal is required every year after the fifth year for it to last the whole 20 years. Also, a patent is valid only in the country that granted it and, therefore, to protect an invention elsewhere, application has to be tendered there, or an international application may be put in under the Patent Cooperation Treaty (PCT), stating the countries in which patent is required. Application may also be put in under the European Patent Convention, stating the European countries required. A product can have multiple patents associated with it, each for a different component. A device like iPhone, for example, has many patents associated with it, including for the design of components, processes, and interaction models.
Once a patent expires, the patentee no longer has the rights to prevent people from exploiting the invention. The rights generally granted by patent law include:
- For a product patent, the right to prevent others from reproducing, selling, importing for sale, or using the product without the permission of the inventor.
- For a process patent, the right to prevent others from using, selling, or offering the process for sale; or importing for the purpose of using, selling, or offering for sale, products produced directly from the process.
Although these rights are there to be exercised at the discretion of a patentee, there are times when a patentee’s decision to refuse license to others can be overruled, similar to nonvoluntary license in copyright. This is known as compulsory license and used by a government when licensing an invention is in the wider public or government interest. A patented medical invention that could be used to save people’s lives, for example, is most likely a good candidate for compulsory licensing if the patentee refuses to grant licenses. Naturally, when a compulsory license is issued, the patentee is also rewarded adequately. In another kind of patent law exception, the owners of inventions, in certain cases, may not be legally qualified to patent their inventions. This applies when an invention is made by someone in the course of doing what they have been employed to do. In such a case, it is usually the employer who will file for patent and own the patent rights. Of course, an employer may also make a deal to give the inventor a percentage of royalties.
2.2. Industrial Designs
Industrial design describes the overall ornamental or aesthetic appearance of the whole or part of a useful product, while appearance derives from the characteristics of features such as shape, colors, lines, text, decoration, contours, texture, patterns, or materials, and any combination of these. It can be in the form of a three-dimensional product, or a two-dimensional pattern or logo to be displayed on it; and covers only the design, not the product. For example, it does not cover a mobile phone or its functionalities, but covers its shape and the color scheme used.
The visual design of a product is very important to the success of the product, particularly when there is competition. It could be what gives the product the necessary edge over other products that are just as functionally capable. One of the aims of industrial design protection is to protect this quality and reward its creators, thereby providing encouragement for investment in product design. This is why industrial design protection usually includes the condition that a design is useful in industry or reproducible commercially.
As with other types of rights, qualification criteria for industrial design protection and scope vary from country to country, and so, indeed, does the name. In the UK, for example, it is referred to as design rights and to qualify, a design must
- Be new or original; that is, not look like any existing designs in part or whole.
- Be for the purpose of beautifying only.
- Not be dictated by the function of a product; that is, it must be solely a design feature.
- Not be offensive or consist of protected emblems.
Provided qualification criteria are met, industrial design protection gives the owner of a design the exclusive rights to produce, import, sell, offer for sale, or hire products that use the design, as well as the rights to prevent others from doing the same without his/her permission. This protection applies in varying degrees, depending on whether or not a design is registered. For an unregistered design, protection is limited, lasting 10 years after its first appearance in the market, or 15 years after creation, whichever is earlier. It also does not protect two-dimensional aspects of a design and only grants exclusive rights for 5 years, after which the owner cannot refuse anyone a license. For a registered design (for which a fee is usually required), a wider range of features is protected and protection may last up to 25 years, provided registration is renewed every 5 years. On the other hand, in the US, for example, designs are protected under a different name, design patent law, and protection lasts 14 years from the date patent is granted.
A trademark describes a sign used to distinguish a product or service from the same types of products or services offered by other people and can be in the form of words or logo, or a combination of both. It may be placed on a product or/and its packaging, or on advertisements when used in relation to marketing. When used this way, it is sometimes referred to as a service mark in some countries, such as the US.
In order to be protected as a trademark, a sign or mark must be registered. This is not the same as registering a company with Companies House or registering a domain name, neither of which grants the rights to use a name as a trademark. Registering a trademark typically gives the exclusive right to use the trademark with relevant products or services and take legal action to prevent unauthorized use. A registered trademark symbol, ® (R in a circle), may be placed next to a registered trademark. A trademark must be registered for the symbol to be used with it. It is usually a criminal offence to use the symbol with an unregistered trademark. If a trademark is unregistered, only the TM symbol, or the copyright symbol © (if protected by copyright), may be used with it. Also, legal action cannot be taken with an unauthorized use of an unregistered trademark the same way as with a registered trademark. Legal action can usually be taken only in an indirect way. For example, in some countries, this can be done only using common law action. In the UK, the common law of passing off is used, although such an action is usually difficult to win, as infringement is often hard to prove.
As well as making legal action easier to take, using a registered trademark symbol serves as a warning to people against using a trademark. However, not all signs are acceptable as trademarks. For a sign or mark to be acceptable for registration, it must meet certain criteria. For example, it must be distinctive and not describe any products, or services, or their characteristics (either in words or by shape). Furthermore, it must not contain a protected emblem, be offensive, illegal, or give the wrong impression of products or services. Being aware of these criteria is particularly useful to a developer in ensuring that the most appropriate trademark is produced, if required in a project. A website name can be registered as trademark in many countries.
3. Seeking Permission to Use People’s Works
The failure to obtain permission before using a copyright-protected work can end up being much more expensive than the cost of obtaining one. Penalty can range from heavy fines to imprisonment in serious cases. Although fair use allows certain degree of use, this is unlikely to be adequate for most purposes in Web design projects. Who to obtain permission from depends on who owns the copyright in a work: the author or the publisher. Where there is one, the publisher is usually approached in the first instance. If the publisher is not responsible for giving the required permission, he/she should be able to point in the right direction.
Where it is an individual who owns the copyright in a work, he/she is approached for permission, typically in writing, and any agreement should be clear and also in writing. With website contents, the first point of contact is the person who owns the site, or the webmaster, if indicated. If it is a company website, it is possible that the webmaster will not be the one responsible for giving permission, but he/she should be able to point to the appropriate person. In almost all cases, information needs to be provided upfront about the media for which permission is sought and the intended usage in order to expedite the clearance process. Typically needed information includes:
- Name of author.
- Title of work.
- How work will be reproduced.
- Exact description of which part of a work is required.
- Details of any modifications intended.
- Description of the overall context. For example, if the work will be combined with other works, the percentage the licensed work will be of the overall work should be described.
In addition to this, a copyright owner may need to know if a work is to be used in a commercial product and, if so, the estimate of how many will be sold, and also for how long permission is needed and for which regions of the world. If permission is being sought to use a work on a product that is going to be sold commercially, then some payment may be required in the form of royalties on the quantity sold of the product. A flat fee is typical for noncommercial purposes. Any license agreement would state the terms and conditions of use, deviation from which will be an act of infringement and may end up being costly.
In some cases, collective management organizations can be used to obtain permission to use others’ works. These organizations essentially give permission to use works protected by copyright and related rights on behalf of copyright owners and ensure that they receive payment for the use of their works. There are various types of these organizations, each involved in different types of works, such as musical, dramatic, and Web production. Most countries have at least one and there are some that operate worldwide. They are particularly useful when it is not possible to contact a copyright owner, or not practical for a copyright owner to grant permission, either because he/she is not available or requests are too many to handle.
4. Dealing with an Infringement
Different countries have different procedures for handling rights infringement, but the general principle is the same. It involves contacting the infringer, usually through writing, so that there is a record of the communication, and describing, politely and professionally, the nature of infringement, stating that the relevant work is protected by law and requesting that all offending materials should be withdrawn, stating a deadline for compliance. The correspondence should also state that you are seeking legal advice and prepared to take the matter further. If the infringement continues and/or you think you are entitled to some compensation, then the matter, with all available evidence, should be passed on to a solicitor. Evidence typically includes the infringing work, the infringed work, copyright registration (if there is any), any track record of the development of the work, and, of course, all correspondence with the infringer.
Source: Sklar David (2016), HTML: A Gentle Introduction to the Web’s Most Popular Language, O’Reilly Media; 1st edition.