1. 1 ICS 417: ICT and Society 4.4 IPR and ICT (These slides were reproduced with the express permission from Prof. Patricia Kameri-Mbote,Faculty of Law, University of Nairobi)

2. 2 Outline n Definition n Conceptualization n Arguments for & Vs IPRs n Forms of IPRs n Governance of IPR n Interface between IT & Law n Trade Mark Issues n Copyright Issues n Challenges

3. 3 Definition n IPR deals with informational services; intangible; creations of the intellect n Can be simultaneously be used by many without denying owner access n Monopoly, exclusive rights n Political economy of IPR: Not many applications from Africa u Seen as imperialistic

4. 4 Conceptualization n Rights focusing on physical manifestations of intellectual activity n Commercial value n Rights in the intangible, not susceptible to physical possession or delineation n Protect innovations/ reward innovative activity n Public good aspect of IPR – difficult to exclude non-owners n Public interest to have information available Vs private interests of creator n Ensures information owners/generators do not lose rights – access by infinite number of prsns n Territoriality of IPRs – effective only in state granting them n “Sunset Clause” – limited duration; Freeing of rights thereafter n Individual rights: Individual persons or legal entities

5. 5 Arguments for & Vs IPR n Arguments for u Innovators require incentives u Encourages information disclosure u Transfer of technology u Promotion of trade u Fosters innovation - an integral part of sovereignty u Human right u Foster development n Arguments Vs u Knowledge and information a public good u Monopolistic – restricts flow of information u Inequitable – less than 1% from Africa u Outside purview of most developing countries = imperialistic u Based on foreign notions of ownership/incapable of protecting IK/TK u Barrier to trade u Hinder development

6. 6 Forms of IP n Patents: Inventions – new, non-obvious & industrially applicable u Not previously known/described; step forward in technology (PHOSITA – objective, universal); practical utility in industry u Exclusive monopoly rights: prevent others from making, using, selling, offering for sale patented product or product made using patented process n Trade/service marks and trade names: symbol/Word/phrase/design used to distinguish goods/services of one person from those of others (Vs unfair competition; advertising function) n Industrial designs : relate to aesthetic aspects of article Vs functionality (appeal to the eye of prospective buyer) n Trade Secrets/Confidential information: Undisclosed information against acquisition & use contrary to honest commercial practices.

7. 7 Forms of IP (Contd.) n Geographical Indications: Mislead the public on geographic origin of goods n Layout Designs and integrated circuits: telecoms and internet connectivity n Copyright and neighbouring/related rights : expression of ideas; bringing ideas to the public (performers, producers and broadcasters n Relevant IPRs in IT: Patents; TMs (Role of TM in branding & Copyright for expressions of ideas; coverage of software)

8. 8 Governance of IPR n International/Regional Regimes for IPP n Patents: u Paris Convention for Protection of Industrial Property 1883 (National treatment; right of priority) u Lusaka Agreement establishing ARIPO & Harare Protocol; Bangui Agreement establishing the African Intellectual Property Organisation (OAPI 1999). n Copyright u Berne Convention for the Protection of Literary & Artistic Works 1886 (NT & automatic protection) n WIPO – UN specialised body u Promotes IPR protection u Training & technical assistance to developing countries u information assembly and dissemination n WTO’s TRIPS Agreement 1994 u Over-arching & stringent int’l IPR regime - Deals with all IPRs

9. 9 Interface between ICT & IPR n Jurisdiction – international presence n Regulation u Tax u Anti-competition/Monopoly Laws F Microsoft Case -unbundling u Consumer protection u Financial & contractual services (e-business) n Demarcation of rights u IPR: Patents, TMs, Copyright, Layout Designs of Integrated Circuits, Industrial n Tort law u Defamation u Privacy n Criminal law u Cyber crimes

10. 10 Trade Mark Issues n Deep-linking – Instead of hyperlinking to page only, goes deeper without displaying the advertisement banner & web site owner’s TM beyond home page u If access predicated on fee, can lead to revenue loss n Use of meta-tags –invisible codes embedded in the HTML can lead ppl to assume different competing companies are linked/affiliated u Passing off one’s goods/services as another’s which is TM infringement (Nakumatt/Uchumi) n Cybersquatting – Registering well-known TM as domain name & seeking to extort payment from TM owner to relinquish name u Anti-Cybersquatting Act in US to guard against this

11. 11 Copyright Issues n Protection of software n Req’ts: originality, creativity & fixed form n Automatic protection upon creation with copyright notification n Rights: u Protection Vs reproduction; u Sale; Rental;Distribution; u Preparation of derivative works; u Performance and display n Economic & Moral rights n Limitations: n 1. Fair use – educational purposes, personal use u Nature of work; impact of use on potential market value of work;purpose & character of work; amount in relation to whole

12. 12 n 2. First sale doctrine – owner of copy can sell copy e.g. book u NB: sale/ rental/lease of computer programme w/o permission of copyright owner is infringement ( no permission to reproduce/redistribute) n 3. Public domain – term expired/owned by government n Owner of computer programme may make limited copies if licence allows u (a) Back up copies u (b) Decompilation purposes to ensure creations can be used in conjunction with existing products & services (need to have access to info) F Can be free/licensed but to be used solely for decompilation u Copying & adapting for lawful use allowed if necessary for lawful use/to correct errors n For databases, if one has a right to use the database, it is no infringement to access and use

13. 13 Challenges n Current regimes geared to ideas expression in physical media u Need to redefine to cope with IT n Separation between copyright for literary work & patents for technological specifications & processes u Copyright programmes currently protected under copyright contain algorithms that might be entitled to patent protection n Enforcement – ease of copying & redistribution u Need to synchronize copyright with encryption policies n Trying to regulate IT thro law is like trying to board a moving bus n For the holder of copyright, cyberspace appears to be the worst of both worlds – a place where the ability to copy could not be better, and where the protection of law could not be worse u Regulation thro technology to prevent copying u Napster case – MP3 Files