[PEC] Intellectual and Intangible Property

Intellectual and Intangible Property(知识产权与无形财产)

Content

  • Protecting Intellectual and Intangible Property
    • To explain aim and value of intellectual property protection
  • Trademarks, Copyright, Patents
    • To explain the scope of trademarks, copyright and patents for intellectual property protection
    • To explain key concepts such as limitation on rights, fair use and infringement
  • IP Protection of Software
    • To discuss the applicability of various intellectual property protection mechanisms for computer software

What is intellectual and intangible property?

Products of creativity and invention
Intellectual property is any unique product of the human intellect that has commercial value
Issue: Computing technologies and the Internet

  • Give rise to new types of intellectual properties
  • Affect the use and protection of intellectual properties

Intellectual property(IP) protection

The purpose of intellectual property law is to ensure that people profit from ideas after the idea is known to everyone.
Intellectual property law considers: Copyright, Patents, Trademarks, Trade Secrets, Proprietary Designs(专利设计), Confidential Information(机密情报), Databases rights.

Factors in deciding about IP protection

For each type of IP protection we consider:

  • What type of thing is to be protected?
  • What rights are reserved for the creator of the work?
  • What rights are reserved for the public?
  • How does one obtain the protection for the work?
  • How long does the protection last?

Copyright protects “original works of authorship fixed in any tangible medium of expression” in the areas of literature, music, drama, pantomime(哑剧), graphic art, sculpture, motion pictures, sound recordings, and architecture.
Copyright cannot cover ideas, facts or common knowledge, nor creative works until they appear in a tangible fixed form.
Example: Dance choreography(编舞) cannot be protected unless it is recorded.

What rights does it entail(蕴含)

Copyright provides four exclusive(独有的) rights to the authors:

  1. The right to reproduce the copyrighted work
  2. The right to prepare derivative works based upon the copyrighted work
  3. The right to distribute copies of the copyrighted work to public by sale or other transfer of ownership, or by rental, lease or landing
  4. The right to perform or display the copyrighted work publicly
    Copyright is automatically guaranteed to the authors as soon as their work is created in a fixed medium. In the USA, copyright lasts for author’s lifetime +70 years after the author’s death.

Copyleft

Software or artistic work may be used, modified, and distributed freely on condition that anything derived from it is bound by the same conditions.

Fair use criteria

Factors to be considered to determine fair use:

  1. The purpose and the character of the use, including whether such use is of a commercial nature or for non-profit educational purposes.
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market of or value of the copyrighted work

Doctrine of First Sale

Copyright guarantees that the owner has economic gain from the sales of the work- the owner may receive royalty(专利税) from sales.
Doctrine of First Sale restricts the owner’s right only to the ‘first royalty’, eliminating the right to the ‘second royalty’,i.e., revenue(税收) from the resale of the used items.

Issue: Digital is easy to copy and disseminate

Digital Rights Management(DRM)

Digital Rights Management(DRM) is a collection of technologies that ensure that copyrighted content can be only viewed by the person who purchased it.

Example: E-books

DRM protected e-book may not allow copy & paste action from the book into a work processor
The system make it impossible to exercise(使用 运用) your right to resell a book
The copyrighted material is encrypted. The key for decryption is obtained from a server that distributes the key per device.(Loss access to the content if changing the device or upgrading the OS)

Circumventing(规避) DRM: Computer security experts and hackers are able to decrypt the material and make it usable on any device.
DMCA is a US Law that says: No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Piracy(著作权侵害,盗版)

Piracy is intentional illegal copying of copyrighted material.
Most users who engage in casual copyright violations call their actions “sharing”, e.g., sharing a disk with a software program with a friend.
Until mid-1990s copyright infringement through sharing had small impact on businesses since shared with close friends.
Impact increased with the Internet and development of technologies for file sharing.

Sharing vs. Stealing

Copyright infringement was criminal only if the infringer acted “for the purpose of commercial advantage for private financial gain”.

Patents: Protecting inventions

  • An invention involves the discovery of “any new and useful process, machine, article of manufacture, or composition of matter. or any new and useful improvement thereof”.
  • Inventions are protected by patents
  • United States Patenting and Trademark Office(USPTO) examines patent applications and determine whether they are truly an invention, i.e.
    • Novel - if the invention has not previously been invented by someone else
    • Non-obvious - if a solution to a problem is not obvious to another specialist in the appropriate area.
    • example: Amazon 1-Click patent

How does a patent look like?

Patent structure:

  • Description
    • Background
    • Summary
    • Description of drawings
    • Detailed Description
      • Referring to drawings
  • Claims

Trade Secrets

Trade secret is a confidential piece of intellectual property that provide a company with a competitive advantage.

  • Formulas, process, proprietary designs, strategic plans, customers lists, and collection of information
  • Companies have right to protect their trade secrets
  • A company must take active measures to keep it from being discovered
  • Trade secrets do not expire
  • It is illegal to steal a trade-secret. However, it is legal to reverse engineer IP.
    example:Coca-Cola formula.

Trademarks

What can be trademarked?

  • Trademark is a word, symbol, picture, sound or colour used by a business to identify goods.
  • A service mark identifies a service
  • By granting a trademark or service mark, a government gives a company the right to use it and the right to prevent other companies from using it.
  • If a product name becomes a common noun, used to describe similar products, the company may lose its right to exclusive use of the band name.
  • Trademarks can be renewed indefinitely.

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