1.4 Intellectual Property (IP) Read More



Individuals and groups develop creative works such as books, music and art or compile information sources such as databases. These are products of the mind - intangable products not like land. In todays world wide legal environment the developers of these works are provided certain ownership rights.
What they own is the Intellectual Property (IP).

IP protection provides owners of the IP some rights over the use of the creative work. Associated with IP and IP rights is the complex area of IP Law.
IP relates to copyright, patents, trademarks, trade secrets and certains designs and practices.
For example Copyright allows the owner e.g. artists or owner of the IP to control how the creative work can be used by others.
The fundamental premis is that the originator of the creative work has rights to benefit from expressions of the work e.g. reproductions of an exact copy of a peice of music, but this needs to be ballanced with a desire to share knowledge (freedom of speech issues) and information so that progress can be made e.g. on hearing a new peice of music that used an electric violin you are free to write a song and buy an electric violin and perform it and earn income. What you would not be allowed to do is perform an exact copy of the music without permission from the owner (or licensee) of the original IP, unless your performance feel within an exception to an infringementor the copyright had expired.

An important point is that copyright does not protect the ideas behind the expression of a work, ideas can only be protected by gaining a patient.

Information Technology and in particular the Internet, file sharing servers and modern digital devices have created a very convenient way to communicate digital material. In so doing the idea of sharing a song, computer program or some other art form that can be digitised has become easy and common place.

The two main areas of controversy relate to sharing music and copying software programs. Clearly individuals can create websites (technically but necessarily legally) and display copyrighted material e.g. play a song or show a logo etc. that they do not possess the rights to. However, there are is another major issue and that is the role of intermedaries.

The role of intermedaries e.g. ISPs has been questioned. ISPs around the world provide aggregated access for the indvidual to access the broader Internet and as such the question is what if any responsibility do these intermedaries have in relation to what individuals upload or download via the links provided. ISPs often argue that they are 'mere conduits' in respect of material transmitted in the same that the postal system is not responsible for what is contained within the mail. In terms of the students own country it worth considering how the local ISPs are working with local and international regulatory authorities to influence future developments.

Another type of intermedary is the provider of a portal that either provides access to a range of material that can be downloaded directly or accessed via a link to another site. Sites such as YouTube take this step further by establishing a community of users who upload and share digital video material. Regulatory authorities workd wide are tending to implement a system of 'notice and take-down'. The ISP/portal is notified with a 'take-down' order and are expected to comply, normally if they act promptly there is no potential for future punative claims against the ISP. However, the important point to note it that this an accusation-based system with no specific need to justify why a 'take-down' order should be complied with. In other words, if an ISP/Portal was to question they may well be deemed to not have acted promptly and lose protection. Clearly a take it down system that lacks some basis of pre-agreed standards is open to abuse from regulators.

Finally the Internet provides an additional layer of complexity in terms of local and international legal juristiction and hence also the difficulty of detection and eventual prosecution.

A simple case study will help to explain the point. The movie Downfall was released in 2004 and shows the final days of Hilter. There is one famous scene that has been appropriated by a number of peope to create Downfall Parodies, many of which have found there way onto YouTube - you are free to view these! But, the studio that owns the copyright for the film have challenged YouTube to remove the parodies as they break copyright law. This is a live problem situation and you can read more about it at this link:

Downfall copyright problems

IP Law is a complex area and varies across the world, but there are also international treaties and increasingly it is likely that copyright law will become more international and less country specific. The student may also like to consider the potential impacts of such a movement.

Interestingly the ideas of Fair Use and Fair Dealings tends to categorise the way different legal systems treate infringements - you are encouraged to investigate your own countries law and to also see what international laws apply in your county.

Page Manager: Andrew Meyenn