Intellectual Property Law

INTELLECTUAL PROPERTY LAW

The creation and sale of Intellectual Property in whatever form is one of the vital functions of the Information Society. This process is not a new one, Irish people have been creating such works for generations; the difference is that the Internet enables works to be published on a global scale. The Internet also increases the potential for abusing and pirating Intellectual Property. Intellectual Property breaks down into three basic areas:

1. Copyright

2. Patents

3. Trademarks

The above are the principle areas in which the legislature has acknowledged the existence of intellectual property and passed acts to protect it. There are other forms of Intellectual property, which are protected by the Common Law, the infringement of goodwill can be dealt with as the tort passing off, contract law or equity may be used to protect confidential information.

The Irish law of Copyright is now to be found in The Copyright and Related Rights Act 2000, this legislation has comprehensively updated the Irish Law of Copyright. Amongst other things it has:

Implemented the Database Directive into Irish law, which extends the protections available to database makers.

Recognised and protected the rights of performers;

Specifically protects Rights Management Information and Rights Protection Measures.

Specifically protects the moral rights of authors by giving them a right of paternity (the right to be identified as the author); a right of integrity (the right not to have their work distorted, modified or mutilated to such an extent that it prejudices the right of the author); the right to object to false attribution.

Prior to its introduction Irish copyright law was to be found in a collection of Irish Statutes, statutory instruments and EU Directives, subject to very occasional interpretation by the Courts. By clarifying much of the existing law, this Act should ensure that Ireland will develop as a centre for the production of copyright works such as web sites and computer programs.

The exploitation of Copyright:

The ownership and control of intellectual property is seen as being vital for future prosperity and growth. When launching a new product or getting a team together to write a new program or create a site, it may be tempting to regard control of IP as being just more red tape. But if your product, program or site should prove to be successful then control of the IP will determine exactly who derives what benefit from that site.

It is important to distinguish an assignment from a licence. An assignment is a transfer of part or all of the IP, so if think of IP as being like a house, this is the same as selling a home and is a complete transfer of the property. It is important to realise that an assignment will only be binding if it is in writing as is provided by section120 (3) of the Copyright and Related Rights Act 2000:

"An assignment of the copyright in a work, whether in whole or in part, is not effective unless it is in writing and signed by or on behalf of the assignor”.

Section 13 of the Electronic Commerce Act 2000 provides that if a signature is required an electronic signature can be used. The Act defines electronic signature extremely broadly so anyone who negotiates a contract by e-mail may assign copyright or other IP rights. It is important to realise that once IP is assigned, the author loses most of his rights. If a programmer writes a program and assigns the rights in it to another, than that person can prevent the programmer from using the program himself.

An electronic signature is defined

as data in electronic form which authenticates the originator.

It includes an advanced electronic signature

a signature which is uniquely linked to the signatory and any change to the data can be detected. (s.2).

Once an assignment is such a complete transfer of IP, most publishers and authors of software and other Internet content do not try to make money from assignments. They instead retail their products using licence agreements, these give users only very limited rights in the products and ensure that the author or owner retains control. Virtually all software which is used is subject to a licence of some sort, these come in various forms: 'end user licence agreements' or EULAs will usually appear on-screen when software is installed and the user will have to click a box to indicate that they agree to be bound by the terms of the agreement before installation will proceed. Major software manufacturers may also have agreements with the manufacturers of computers, which enable them to install software on the PC’s, which they sell. There are other forms of licence agreements 'shareware' is a popular way of marketing software, which enables users to try programs before they buy them. There is also the open source movement, such as LINUX, where software is produced by collective effort. But the user must always comply with the terms of a licence, even if that licence is given for free. Just because a program is available as shareware does not mean that the owner of the program has renounced any of their rights to that program.

The licence should clearly state what the user can do with the product sold, what they cannot do with the product and the conditions and circumstances under which the licence will be revoked. The licence should also try to limit the potential liabilities of the vendor and the guarantees and warranties, which he must provide. In view of this, it is vital that any licence agreement should be carefully drafted by a qualified lawyer. It is inadvisable to use pro forma precedents from the USA as their law differs from that in Ireland and Europe.

Patent Law

The Irish law of Patents is contained in The Patents Act 1992 which implemented the European Patents Convention in Ireland. Section 9 provides that ‘inventions’ can be patented, provided that they meet the Act’s criteria such as novelty, involving an inventive step and being capable of industrial application. There is a very large body of case law from the English Courts in particular and decisions of the European Patent office on what can be patented. However, Europe is falling behind the USA and Japan with regard to the issuing of patents. To this end the European Union has proposed a Regulation on Patents and a Directive on Computer Implemented Inventions.

The protection of business methods by patent law has become a controversial issue in the USA.

Trade Marks

Trademarks are probably the most actively litigated aspect of Irish intellectual Property law and are protected under The Trademarks Act 1996. To get protection a company or individual must apply for a trademark to the Controller of Patents Trademarks and Designs. Getting a trademark can be a lengthy and difficult process, but the actuarial of trademark rights is essential for any business, which intends to use a distinguishing mark as part of a branding campaign.

Like other aspects of Intellectual property law, International developments are of increasing significance. The Community Trademark gives protection in all countries of the European Union, and may be applied for in the Community Trademark Office in Spain.

Relevant sites

Irish Patents Office

http://global.bsa.org/ireland/report: The Business Software Alliance.