Answers for the selected review
questions in Chapter 8 - Intellectual Property Disputes in Cyberspace of the
book Ethics and Technology : Controversies, Questions, and Strategies
for Ethical Computing, Herman T. Tavani, Rivier University—Fourth edition.
1. What is intellectual property?
Intellectual property refers to creations
of the mind: inventions; literary and artistic works; and symbols, names and
images used in commerce.
References:
[1]
http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf
2. How is intellectual
property different from tangible property?
Unlike physical
property, intellectual property consists of objects that are not tangible.
These
non-tangible(intangible), or intellectual, objects represent literary/ creative
works and inventions, which are the manifestations or expressions of ideas.
Unlike tangible objects,
which are exclusionary in nature, intellectual objects (e.g., software
programs) are non-exclusionary.
Therefore we can see
differences in following areas.
- Quantitative Limitations of Ownership/Production
- Countless digital copies of a software program can be
produced and each at a relatively low cost.
- But a land cannot be produce/own that much.
- Way of protection or legal claim
- Physical objects have clear visibility of boundary.
- For intellectual objects difficult to define the
boundary.
References:
[1] Ethics and
Technology : Controversies, Questions, and Strategies for Ethical Computing,
Herman T. Tavani, Fourth edition.
8. What is the principle
of fair use?
According to the
fair-use principle, every author or publisher may make limited use of another
person’s copyrighted work for few specific purposes.
For purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship
or research, shall not be an infringement of copyright.
Reference:
[1] Sri Lanka Intellectual Property Act, No 36 of 2003,
12. What are the
arguments for and against protecting software with patents?
Arguments for
patentability
·
Public disclosure
o
A patent must publicly
disclose the invention. This could educate the public by making them aware of a
previously unknown or not obvious software invention.
·
Innovation
o
In the U.S., the
Congress has stated that "anything under the sun made by man"
deserves patent protection to promote innovation.
·
Economic benefit ***
o
Software patents
resulting from the production of patentable ideas can increase the valuation of
small companies.
o
Software patents
increase the return on investment made by the public on federally sponsored
university research, and ensures the flow of knowledge that is required for
society to progress.
·
Copyright limitations
o
Patents protect
functionality. Copyright on the other hand only protects expression.
Substantial modification to an original work, even if it performs exactly the
same function, would not be prevented by copyright. To prove copyright
infringement also requires the additional hurdle of proving copying which is
not necessary for patent infringement.
Arguments against
patentability
·
Software is math
o
A program is the
transcription of an algorithm in a programming language, and being every
(Turing-complete) programming language equivalent to Church's lambda calculus
by virtue of the Church-Turing thesis, a program is thus the transcription of a
mathematical function.
o
Since math is not
patentable, neither is software.
·
Software encourages
patent thickets
o
A patent thicket is a dense web of patents that companies must
decipher in order to develop new technology.
o
There are various types
of patent thickets such as when a single innovation is protected by multiple
patent holders or when a product is covered by numerous patents.
o
The consequences of
patent thickets are increased difficulty of innovation, cross-licensing
relations between companies will be too complex, and it discourages newcomers
to enter the software industry.
·
Hinders research and
development
o
Some scientific studies
and expert reviews have concluded that patent systems paradoxically hinder
technological progress and allows monopolies and powerful companies to exclude
others from industrial science in a manner that is irreconcilable with
anti-trust laws.
·
Patent examination is
too slow
·
Trivial patents ***
o
Some software patents
cover either trivial inventions or inventions that would have been obvious to
persons of ordinary skill in the art at the time the invention was made.
o
Patent examiners rarely
have a comprehensive knowledge of the specific technologies disclosed in the
patent applications they examine. This is in large part due to the enormous
number of micro-niches in the software field and the relatively limited number of
examiners. So, patents are sometimes allowed on inventions that appear to be
trivial extensions of existing technologies.
·
Software is different
o
Software programs are
different than other electromechanical devices because they are designed solely
in terms of their function. The inventor of a typical electromechanical device
must design new physical features to qualify for a patent. On the other hand, a
software developer need only design new functions to create a working
embodiment of the program.
o
Software is a component
of a machine. The computer’s hardware is generic; it performs functions that
are common to all of the software that is capable of being executed on the
computer. Each software program that is capable of executing on the computer is
a component of the computer.
o
Computers
"design" and build the structure of executable software. Thus,
software developers do not design the executable software's physical
structure because they merely provide the functional terms.
·
Copyright
***
o
It is argued that
traditional copyright has provided sufficient protection to facilitate massive
investment in software development.
o
Author of a particular
piece of software can sue someone that copies that software without a license.
Copyright protection is given automatically and immediately without the need to
register the copyright with a government, although registration does strengthen
protection.
References:
