Richard Platts MBCS presents a layman's view of those aspects of intellectual property rights that have particular relevance to the software industry.

Intellectual property rights (IPR) is the term applied to the legal protection afforded to innovative and creative materials. The intention is to allow the owner of IPR to gain from the use of the material and thereby to encourage innovation and creativity.

IPR can be thought of as property and can be bought and sold. Owning IPR in material gives the owner a monopoly for a period of time. IPR legislation has evolved over many years. There are consequently a number of overlapping categories.

The essential categories of IPR are:

  • copyright;
  • patent;
  • design rights;
  • trade marks.

In addition there are other forms of IPR protection including:

  • database rights;
  • internet domain names.

Copyright

In UK law copyright exists in original creative material in many forms including: written, music, art and photographs. Other non-original works such as sound recordings, films and broadcasts may also be covered.

Copyright is automatically conferred and is not registered. Copyright is regardless of the medium, essentially covering the expression of an idea and not the idea itself.

Usually the copyright in a work is owned by the author although there are exceptions, for example, if the owner is an employee and the work is created in the course of their employment, then the copyright would normally be owned by the employer. Copyright can also be assigned or licensed by the owner to a third party.

With particular reference to software, the act of holding a piece of software on a computer will generally require that the software be copied - perhaps from the machine on which it was created or from some storage medium.

This requires the consent of the copyright holder. Executing software on a computer may imply that it is copied onto the machine. The consent of the copyright holder is also required.

Typically these permissions are conferred in a licence agreement between the copyright owner and the user of the software. But if someone obtains a pirated copy of software then transferring it on to a computer may breach copyright.

Patent

A patent applies to an invention and confers on the patent holder a monopoly of the exploitation of the invention for a limited period.

The invention must be new and inventive, that is it must involve a step of creativity not obvious from current knowledge. The invention must also have industrial application.

Under current legislation computer programs are not patentable in their own right. A program can only be patented if, when running, it produces a 'technical effect more than would necessarily follow merely from the running of any program on a computer'.

The stance of the UK government (2001) is that: '...patents should be for technological innovations.

A new machine tool should be patentable but a non-technological invention such as grammar checking software for a word processor should not be.' The government also indicates that 'the law is not clear enough' and that 'urgent European action to clarify is needed.'

In the view of the author the decisive factor is the role played by the software. In the machine tool we can presume that software is an intrinsic part of the operation without which the equipment would be non-functional.

Thus a real-time control system that enables an invention to operate and therefore forms a part of that invention would seem to be potentially patentable. We await clarification.

Where a patent is possible it must be applied for and approved by the Patent Office. Ownership is similar to copyright in that the patent is granted to the inventor unless it was discovered in the normal course of employment in which case it is granted to the employer.

A patent may be assigned or licensed to others by the owner.

Design rights

Design rights may be unregistered or registered. An unregistered design right prohibits others from reproducing or copying the design of a product. The reproduction does not have to be exact.

Registered designs are those where the appearance of the product is registered with the Patent Office. The owner of the right then has a monopoly of the use of the design and can legally prevent others from infringing it.

The design essentially refers to the physical characteristics of the product, which would seem to rule out application to software alone but to a device of which software forms a part.

Trademarks

A trademark is a sign or image that identifies the brand or products of one organisation from those of another. The trademark is a badge. It must be registered and must be distinctive. Protection applies to the trademark rather than the goods or services to which it applies.

Database rights

Database rights are similar to a copyright on the contents and arrangement of a database. As such the database may be considered to be a literary work and copyright rules would apply to making extracts from it.

Commercial use should not be made without the approval of the copyright owner.

Internet domain names

An emergent problem with the increasing commercial reliance on the internet is the speculative registration of the trademarks and trade names of others as internet domain names.

This is termed 'cybersquatting' and has been used in attempts to extort money from legitimate businesses.

The domain name system is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). In January 2000 a Universal Domain Name Dispute Resolution Procedure (UDRP) was introduced to combat cybersquatting.

Under this a complaint may be made by the owner of a trademark against a domain name that is confusingly similar, where they can show the domain name owner has no rights or legitimate interests in the trademark and has registered the domain name in bad faith.

Where the complaint is upheld by a dispute resolution service the offending domain name may be transferred to the complainer.

This article does not provide legal advice or guidance. If you have any requirement for this please refer to an appropriately qualified and experienced legal professional.

This article first appeared in the BCS Annual Review 2006.