Intellectual Property Disputes in Cyberspace

Intellectual Property
in Cyberspace
Topic 8
* QUIZ 2 – WEEK 10
Overview of Topic
Intellectual Property Disputes in Cyberspace
At the end of this topic, I will be able to ……………….…………
1. explain different views of Property
2. explain Intellectual Objects opposed to Tangible Objects
3. explain why Intellectual Property should be protected
4. explain the 4 types of Intellectual Protecton Schemes
5. Explain the Philosophical Foundaton for
Intellectual Property
Tangible Property
When discussing property, we
tend to think of
tangible items.
Originally, “property” referred to
Property now includes
objects one can
own, such as:
an automobile,
artcles of clothing,
a stamp collecton.
Property as a “Relatonal” Concept
Property should not be viewed simply in terms
items / things. Also describes
relatonship between individuals in
reference to things.
3 elements need to be considered:
(i) an
individual ( X ),
(ii) an
object ( Y ),
(iii) X’s relaton to other
individuals (A, B, C, etc.)
in reference to Y.
X (as owner of property Y) can control Y
relatve to persons A, B, C, & so forth.
If Harry owns certain object (e.g. Toshiba
laptop computer), then Harry can
who has access to object & how it
is used.
E.g. Harry has right
to exclude Sally
using laptop computer
or he could grant her
unlimited access to it
Property as a “Form of Control
Intellectual Objects
Philosophers use expression intellectual objects
when referring to forms of intellectual property.
Unlike physical property, intellectual property
consists of
n ontangible objects.
These nontangible or intellectual
objects represent
& inventons, which are
expressions of ideas.
Intellectual vs Tangible Objects
Tangible objects exclusionary
If Harry owns laptop (physical
object), then Sally
c annot &
vice versa.
Intellectual objects, e.g. sofware
If Sally makes copy of program
(resides in Harry’s computer)
both Sally & Harry can
possess copies of same
Sense of scarcity – applies to tangible objects,
which ofen causes competton & rivalry
need n ot exist for intellectual objects.
Limitatons to number of physical objects one
can own. E.g. amount of land owned.
Intellectual objects easily reproduced.
Countless copies of a sofware program can
be produced – relatvely low cost.
Intellectual vs Tangible Objects
Ownership of
Intellectual vs Tangible Objects
Legally, cannot o wn an idea in same
sense one can own
a physical object.
Governments do not grant
ownership rights to
individuals for
Legal protecton given
only to
expression of idea.
Ideas vs. Expressions of Ideas
If idea literary / artstc in nature, must be
expressed in tangible medium to be
Tangible medium could be physical book or
sheet of paper with a musical score.
If idea functonal in nature, e.g. inventon,
be expressed
in terms of machine / process.
Authors copyright protectons for
expressions of literary ideas, inventors given
patent protecton for inventons.
Why Protect Intellectual Property?
Current laws – intellectual property should be
protected. Anglo-American law: philosophical
justfcaton for
intellectual property rights
grounded in 2 different views:
natural rights,
conventonal (or constructed) rights.
Protectng Intellectual Property
One theory – property rights
as “natural rights” –
justfed for products that result
from their
labor, including
intellectual objects.
Another theory – property rights
as “social constructdesigned
encourage creators &
inventors to bring artstc works
& inventons into marketplace.

Sofware as Intellectual Property
Should computer programs be eligible for
patent protecton? Copyright protecton?
sofware consist of lines of programming code
Not expressed in tangible medium e.g. literary works.
Sofware programs resemble algorithms –
not eligible for patent protecton. Initally,
sofware programs NOT eligible for
copyright or patent protecton. Eventually,
copyright & patent protectons were given.
Patents protect idea, copyright protects
writen code.
Intellectual Property
Four protecton
Trade secrets

What Does Copyright Law Protect?
Copyright is legal form of protecton
given to “person” / author.
Can be organizaton
or corporaton, or
an individual.
– Copyright law
Trade secrets
What Does Copyright Law Protect? Patents Copyright law
Trade secrets
Copyright protecton given for e xpression of idea
e.g. book, musical compositon, photograph, poem, dance
movement, audiovisual works, or
computer sofware.
Copyright Protecton
For work to be protected under copyright law,
must satsfy 3 conditons, in that it needs to be:
fxed in a tangible medium.
Copyright Protecton
Copyright holders have exclusive right to:
make copies of the work;
produce derivatve works, translatons into other
languages, movies based on book, & so forth;
distribute copies;
perform works in public
musicals, plays, etc.);
display works in public
(e.g., art works).
Defniton: A business arrangement in which one
company gives another company permission to
manufacture its product for a specifed payment.
A fast or more proftable way to grow
is by licensing intellectual property to

Fair Use Principle in Copyright Law
To balance exclusive controls given to copyright
holders against interests of
society Fair Use.
Fair Use – may make limited use of another
person’s copyrighted work for purposes such as
critcism, comment,
news, reportng,
teaching, scholarship
& research
First Sale Doctrine
First Sale doctrine is
balancing scheme
in copyright law. Applies once
original work has been
for frst tme – original owner
loses rights over work of art.
Once purchase copy of
book, audio tape, paintng,
free to give away, resell
or destroy copy of that work.

literary work was extended to include
p computers rograms, & “databases that exhibit
The amendment defned a computer program as “a
set of statements or instructons to be used directly in
a computer in order to bring about certain results.”
Additonal reading
The Copyright Act (US) was amended in 1980
to address status of software programs &
concept of a
To obtain a copyright
computer however, its author had to
contained an original expression (or arrangement) of
ideas & not simply the ideas themselves.

1998, 2 readingimportant amendments made to Copyright Act:
Sonny Bono Copyright Term Extension Act (SBCTEA) & Digital
Millennium Copyright Act
SBCTEA extended length of copyright protecton from
life of author plus 50 years to life of author plus 70
. Critcs of SBCTEA noted law was passed just in
tme to keep Mickey Mouse from entering public
domain & also pointed out that Disney Corporaton
lobbied very hard for passage of this act.

Critcs reading believe the fair-use provision of copyright law
is threatened by both SBCTEA & DMCA.
Some believe SBCTEA threatens fair use – it has
delayed many proprietary works from entering public
domain & being freely available for general use.
DMCA has
serious implicatons for fair-use principle,
because its
antcircumventon clause makes it
illegal to reverse engineer a compettor’s product to
see how it works. Innovators & compettors have
depended on use of reverse engineering, which has
been protected by Copyright Act’s
fair-use principle.
DMCA: implicatons for frst-sale provision
as works formated in digital media typically
licensed by user rather than purchased &
owned by a consumer.

Sofware License Agreement
A sofware license agreement is the legal
contract between the licensor and/or author
& purchaser of a piece of
sofware which
establishes purchaser’s rights.
A sofware license
details how &
the sofware can
used & provides
restrictons imposed
on the sofware.
– Copyright law
– Patents
Trade secrets
Patent – form of
legal protecton
given to
individuals who
inventon 20-year/ process.
monopoly over
implementaton of
a protected work.

Patent protecton can be applied
inventons & discoveries e.g.
machines, artcles of manufacture.
Patents granted to
inventons & discoveries
that satsfy 3
First, inventon must have a certain usefulness, or utlity, in
order to be awarded a patent; inventng a machine or process
that does nothing “useful” would not merit inventor a patent.
Also, inventon must be
novel, or new, in order to qualify for
a patent. One cannot simply modify an existng inventon and
expect to be granted a patent for it; the modifcaton would
have to be signifcant enough to make a
qualifed difference.
Inventon / process must be
nonobvious. E.g., possible no one has
yet recorded directons for how to travel
from Melaka, to Kuala Lumpur, through
Tampin, but
describing route would not
satsfy conditon of nonobviousness.

Copyright law
– Trademarks
– Trade secrets
Trademark – word, name
phrase, logo or symbol –
identfes product /
Lanham Act (also Trademark Act of 1946)
was passed to provide protecton
for registered trademarks &
ensure quality associated with a
certain logo/symbol used by a
business actually represents quality
consumers expect (e.g. BMW label).

Consider common trademarks:
apple symbolizes Apple &
Macintosh computers
golden arch-like “M” –
To qualify for
“mark” /
d b


Trade Secrets Copyright law


– Trade secrets A trade secret is defned as:
informaton used in operaton of a

business or other enterprise sufciently
valuable & secret to afford an actual or
economic advantage over others.
Trade secrets can be used to protect:
formulas (e.g. Coca-Cola);
blueprints for future projects;
chemical compounds (e.g. WD40);
process of manufacturing.
Intellectual Property Infringement
Violaton of intellectual property rights, infringement
with regard to patents, copyrights & trademarks &
“misappropriaton” with respect to trade secrets, can be a
breach of civil law or criminal law, which depends on
the type of intellectual property involved, the jurisdicton,
and the nature of the acton.

Philosophical Foundatons
for Intellectual Property
3 distnct types of traditonal (philosophical)
theories regarding
property rights:
– Labor theory;
Utlitarian theory;
Personality theory.
Some argue against all property protecton.
Others argue against protectng intellectual
property, but not against tangible property.
Labor Theory
regarding property rights
According to theory,
person enttled to
results of his / her
Makes sense
for physical
as well?
Hard Labor
Critcisms of Labor Theory
Intellectual works
don’t always require
same kind of labor.
Natural rights: not dependent on laws / customs of any
culture or government. Said to exist prior to establishment of
Hard Labor ???
regarding property rights
Assumes property right is natural right.
Applies only to people who “own
their bodies”
(ruling out slaves).
DEF Corporaton, a sofware company with 80 employees, has spent the
last year developing a sophistcated database program that it is about to
release. Thirty sofware developers have been employed full tme on
this project, and each sofware developer worked an average of 60
hours per week. The company expects that it will take more than 1 year
to recoup the investment of labor and tme put into this project. DEF
applies for a copyright for its product.
XYZ Inc., which also produces database sofware, fles a suit against DEF
Corporaton for allegedly infringing on its copyright: XYZ claims DEF has
copied a feature used in the interface in one of XYZ’s sofware products.
DEF objects by arguing that the feature is, in fact, not original & thus XYZ
Inc. should not be eligible for copyright protecton.
Importantly, DEF further argues: it has invested considerable
labor & “sweat” in its database program, so it should be
rewarded for its hard work.
A dditonal reading SCENARIO 8–4: DEF Corporaton vs. XYZ

Utlitarian Theory
regarding property rights
Property rights beter understood as artfcial
or conventons devised by state to
achieve certain
practcal ends.
Property rights NOT natural rights; conventonal
by governments.
Property rights should
be granted –
to bring ideas into
marketplace (i.e. social utlity)
Critcisms of Utlitarian Theory
regarding property rights
According to theory, grantng property rights
maximize good for greatest number
of people
in given society.
Assumes there must be an
economic incentve to
produce creatve works.
Utlitarian theory in general favors
greatest number of persons at
expense of minority populaton.
Sam is a talented & creatve person, but he is not industrious when it
comes to following through with his ideas. He has an idea for an add-on
device that would enable a popular e-book reader to store & play music
(MP3 fles). Many of Sam’s friends are interested in his idea & some
have encouraged him to develop this device so that they can use it on
their e-book readers. But Sam remains unconvinced & unmotvated.
Then Sam’s friend, Pat, tells him that a friend of hers patented an
analogous inventon & has since earned thousands of dollars. Pat tries
to persuade Sam that not only would his inventon beneft his friends
but also he would stand to gain fnancially if he patents the product & it
is successful. Afer considering Pat’s advice, Sam decides to work on his
inventon and apply for a patent for it.
Was utlitarian incentve (i.e., fnancial beneft) necessary to get Sam to follow
through on his inventon? Would he have brought his inventon into
marketplace if there were not a fnancial entcement? Do people only
produce creatve works because of fnancial rewards they might receive?
A dditonal reading SCENARIO 8–5: Sam’s e-Book Reader Add-on

Personality Theory
regarding property rights
Property rights not ted to labor
or to economic incentves.
Property right should be granted
because of personality of author
invested in creatve work
(regardless of economic consideratons).
According to theory, intellectual
object is an extension of creator’s
personality (i.e., person’s being or soul).
Personality Theory
regarding property rights
It is because of this relatonship between intellectual
& creator’s personality that advocates believe
that creatve works deserve legal protecton.
Interestng interpretaton: why author
should have
control over ways in which his
or her work can be displayed & distributed.
To ensure this control, suggested
authors should be given protecton for
their artstc work even if they have
no legal claim (e.g. monetary reward).

Critcism of the Personality Theory
regarding property rights
Personality theory assumes property
rights are
natural or moral rights.
Theory also ignores:
role of economic incentves;
role of labor;
fact some author might not have
invested “true” personality in some
creatve work
(e.g. deliberate atempt on part
of author of a creatve work to deceive someone).

A dditonal reading SCENARIO 8–6: Angela’s B++ Programming
Angela, a student, has developed a new programming tool,
called B++. This sofware can be used with the standard C++
programming language to execute certain tasks more quickly
than the C++ instructon set. Angela has recently published an
artcle that describes, in detail, how her tool works, and why
she was motvated to develop B++. She was delighted to have
her artcle published in the journal CyberTechnology. As part
of conditons for publicaton, Angela had to agree to sign over
copyright for her artcle to CyberPress
(publisher of CyberTechnology).
She is informed that a textbook publisher, CyberTextbooks
Inc., wishes to include a porton of her artcle in a textbook.
As copyright holder for Angela’s artcle, CyberPress is legally
authorized to allow CyberTextbooks to reprint all or selected
portons of her artcle.

A dditonal reading SCENARIO 8–6: Angela’s B++ Programming
Suppose, however, that Angela protests that mere excerpts
from her artcle neither truly convey the important features of
her programming tool nor explain how it works. She further
argues that the artcle is an
extension of her persona & that
only in total does the artcle reveal her creatve talents as a
Can her argument, based on noton of intellectual property as
an expression of one’s
personality, be defended on moral
? Because she signed over the copyright for her artcle
to CyberPress, she has no legal grounds for objectng to how
that artcle is subsequently used. But, on
moral grounds,
she could claim that the publicaton of her abridged artcle
does not fairly present her creatve work.

Summary of 3 Philosophical Theories
regarding property rights

property rights can be justfed by labor / toil one
invests in cultvatng land / creatng work of art.
Argues – property rights – not natural rights but
artfcial rights created by state. Property rights
granted to individuals & corporatons (
because result in
greater social utlity overall.
Argues – property right is m oral / natural right
& property rights justfed not because of
labor/social utlity but because creatve works
express personalites of authors that create them.

Argues – property right is a “natural right” &
End of Topic 8
Scenario in the Real & Virtual World
Applicaton of the Ethical Theory of Deontology (Kant)
Cyberpiracy ( Digital Piracy)
Class Discussion
Additonal reading
Consider that copying proprietary sofware program,
like the thef of someone’s physical property, deprives
the property owner of legitmate use of his / her
property. If someone steals my laptop, he deprives me
of my right to use a device that I own; similarly, when
someone makes an unauthorized copy of a proprietary
program that I own (as copyright holder), he deprives
me of income to which I am enttled.
Spinello argues: unauthorized copying is harmful
because it is a misuse, misappropriaton, or “unfair
taking” of another person’s property against the
property owner’s will.

Some might object to this by claiming that while an
individual programmer, who is self-employed, may be
harmed by unauthorized copying of his program, most
proprietary sofware programs are owned by wealthy
corporatons; for instance, they might argue that
Microsof is so well-off that it will not suffer if it loses
revenue from a few sales of its Word program.
However, you can probably
see the danger that might
result if everyone used this
line of reasoning

Scenario in the Real & Virtual World
Applicaton of the Ethical Theory of Deontology (Ross)
Class Discussion