Legal framework of Scientific Conduct (^-t Today's programme (( ' — Copyright and authorship iH —- IP Rights to software ^ -----Data and database rights -----General responsibility towards society IPRs Copyright & Related rights Industrial property 14.12.2022 Industrial Property Rights General Procedure Application I Examination I (Publication) I Registration I Renewal 2 Life cycle • Regulation • Basics • Requirements for protection • Grant procedure • Protection: scope protection &term & exceptions • Enforcement • Termination Regulation • Paris Convention for the Protection of Industrial Property (1883) • Patent Cooperation Treaty (1970) • Strasbourg Agreement Concerning the International Patent Classification (1971) • Patent Law Treaty (2000) • European Patent Convention (1973) • http://www.epo. org/law-practice/legal-texts/html/epc/2016/e/index. html • Unitary patent package: EU Regulations 1257/2012, 1260/2012 and Council Decision 2011/167/EU Basics • Protection for inventions • A technical solution to a technical problem Requirements for protection • Protectable subject-matter • Novelty • Inventive step • Industrial applicability Patentable invention (subject matter) • Inventions solving non-technical problems relying on subject matter void of any technical character are not eligible for a patent. A52(l) European patents shall be granted for any inventions, in all fields of technology, provided that they are - new, - involve an inventive step and are - susceptible of industrial application. A52(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information. A52(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such. Novelty-A54 (1) An invention shall be considered to be new if it does not form part of the state of the art. (2) The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application. Inventive step - A56 An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. Industrial application - A57 An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. Grant procedure • National • European Patent (European Patent Convention) - not an EU Patent, international agreement • Filing, Search, Examination, Grant, Opposition Protection: scope protection & term & exceptions • EPC: bundle of national patens • A69 EPC - defined by claims • A64 EPC - the same rights as would be conferred by a national patent granted in that State • A3 (Regulation 1257/2012) Unitary patent: unitary effect • limited, transferred or revoked, or lapse, in respect of all the participating Member States ' A7 (Regulation 1257/2012) • shall be treated in its entirety and in all the participating Member States as a national patent of the participating Member State Protection: scope protection &term & exceptions • 20 years from filing • Yearly fees • Exceptions: experimental & private use (national law) Biotech inventions ■ Directive 9S/44/EC — leeal protection of biotechnoloeical inventions ■ {"mentions which concern a product consisting of, or containing, biological material* or a process for the production of such biological material may be patented if they are new, involve an inventive step and can be applied industrially. • The following are not patentable: • essentially biological processes* for producing plants and animals • the human body at the various stages of its formation and development. • However, an element isolated from the human body or produced by a technical process may be a patentable invention. • Inventions may not be patented where their commercialisation would be immoral or against public order. In particular, the following are not patentable: • processes for cloning human beings • processes that modify the human germ line genetic identity • use of human embryos for industrial or commercial purposes • processes that may cause suffering to animals when modifying their genetic identity" ■ Source: https://eur-le!<.europa.eu/leEal-content/EN/TXT/?uri=LEGISSUM:l26026 Copyright and Authorship Copyrighted work •Unique result > Creative substance •Creative element •Natural person • Expressed in a way > Objective expression that can be percieved Copyright Moral rights to the work • Part of your personality" cannot be sold (in some European countries) • right to claim authorship • object to any distortion, modification of, or other derogatory action which would be prejudicial to the author's honor or reputation Economic rights to the work • Rights to benefits from your creativity • Prevent anybody else to use work What is copyrighted? • It really depends on the nation ( / • Harmonisation through international \ / treaties • Berne Convention, WIPO Copyright treaties, WTO WIPO gives examples of what is protected in most countries • films, musical compositions, artistic works, drawings, photographs, • architecture • advertisements, maps, and technical drawings. convention (mother of all copyright treaties) -1886 • Minimum standards of protection • works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its • National treatment • Each state grants foreign works same treatment as national works • Copyright is the need to require authorisation to „use" the work • „Use" is a technical term, has to be defined by • Positive list of „uses" that require authorisation What does it mean to „USE" (typical examples) the right to translate, the right to make adaptations and arrangements of the work, the right to perform in public dramatic, dramatico-musical and musical works, the right to recite literary works in public, the right to communicate to the public the performance of such works, the right to broadcast, the right to make reproductions in any manner or form, the right to use the work as a basis for an audiovisual work Summary Each country has at least two ^positive" lists: • What is considered as ^protected work" • What is considered as „use" Most countries have the third list • Exceptions 14.12.2022 International treaties Berne Convention TRIPS ■ WCT ■ WPPT Directive 87/54/EC protection of semiconductor topographies Directive 93/83/EEC satellite and cable Directive 2001/84/EC on the resale right Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright Directive 2011/77/EU on the term of protection of copyright and certain related rights E U TO n Directive 2012/28/EU on certain permitted uses of orphan works f T3 IT1GWO fk Directive 2009/24/EC on the legal protection of computer programs Directive 96/9/ECon the legal protection of databases Directive 2001/29/EC on the harmonisation of certain aspects of copyright in the Information society Directive 2019/790/EU on copyright and related rights in the Digital Single Market Authorship 11 14.12.2022 Author ■ Originator - the one who gives existence ■ Creative input + effort ■ If two autors reach the same work independently the Copyright belongs to the first in line (usually). ■ One work cannot have two authors, but can have co-authors Co-Authors VS Collection of works Collection of works (not co-authorship) a n ■ m Ivln . IL 12 Employee keeps Moral rights Rights of an employer/investor E±3 Employer/Investor utilizes Economic rights Authorship and Plagiarism Academic and Legal perspective What cannot be copyrighted Laws of nature fl^B Mathematica (Discovery) ^J^jjB principles ^^^^ Abstract ideas ^^^^ Factual ^^^^ Scientific theories Anything that has not been expressed. 14.12.2022 The fundamental difference COPYRIGHT PROTECTS THE ETHICS PROTECTS THE „EXPRESSION" ..IDEA" Who is the Author? ACCORDING TO LAW - THE PERSON WHO WROTE (TYPED] THE TEXT ACCORDINGTO RESEARCH ETHICS- THE PERSONWHO HAD AN IDEAAND CONTRIBUTED EFFORT What is Plagiarism? 66 ™ US«™"™™™»™» "™™ 14 14.12.2022 Citation » Using (unsubstantial) part of someone's work » It is allowed for research and teaching purposes » Must be proportionate and not detrimental to the Author's interests » Giving somebody credit for the contribution on which you build your research Right to software and computer programs Introduction to Software !:*'°-'-,V::i:=:"'.-. 15 iijl machine-readable instructions 51 direct a computer to perform specific operations Computer program CP Software vs. Program 1 UH Software Broader definition Machine lang Program Program, Data, Documentation, Low level pro High level pre ■ Compiler gramming language (i.e. Assebler] gramming language Coding, Programming, Engineering discipline concerned with Hardware and Software discipline that is concerned with all aspects of software production comprehensive process from formulation ofa problem to executable programs A specific activity during implementation ofa program 14.12.2022 Required Legal tools What to protect ? • IDEA • FUNCTION • GUI • BRAND What to protect ? • IDEA • FUNCTION • GUI • BRAND 17 14.12.2022 What to protect ? • IDEA • FUNCTION • GUI • BRAND What to protect ? • IDEA • ' E • FUNCTION • GUI <= ;: ° • BRAND 0 — What to protect ? • IDEA • FUNCTION • GUI • BRAND 18 14.12.2022 Main objectives: Software market How to communicate value in a market? Further Issues • Employee-employer relations • Agency agreements Remuneration of software producers Protection of License fee vs. Salary " Code Company vs. programmer ■ Graphic user interface 19 14.12.2022 Legal tools for producers Copyright ©DRM- software ^^^fc protection tools? ^^^9 Other specific IP rights? Further questions Protection of confidentiality and source code Software patents • Distinction between individual countries • EU perspective j^Free software concept and rules I Practical skills in contract writing EULA, SLA Competition law perspective Software Market Generic copy/Service in cloud/Individual solution 81S-& - csrit ^ a kf ( jj, ^jg bÄm - ■ :RCP «DG ftemi< .;.....„ sw. ^ wm"~" US. -• ™ NEC """^ rfWK .ha 8 a* tS* .... 20 Software Products Generic products Customized products Four Fundamental activities Computer programs Directive (EU) computer program shall include programs in any form: • generic software • customized software • incorporated into hardware • preparatory design work Architecture of software - law does not make this distinction Platform software Application software User Written software (^j-^ How is the program protected? 0 by copyright, as literary works within the Applies to expression in Berne Convention any form Copyright to computer program What is protected? YES No - the expression of a computer program - Binary Code - Source code - Ideas - Principles - Logic, - Algorithms - Programming languages • Originator - the one who gives existence • Creative input + effort • If two autors reach the same work independently the Copyright belongs to the first in line (usually). • One work cannot have two authors, but can have co-authors 14.12.2022 Original Work? m • A computer program shall be protected Author if it is original no tests as to the qualitative or aesthetic merits Individual Group Com pany Co-Authors it Co-Authorship means Both/aiico that the contributions to autors recieve the final result cannot be eciual rights to percieved independently VS Collection of works Collection of Thepersonwho independent elements coiiectsmany does not equal to co- separate right3 authorship to a collection Cooperation - Who owns the work ?? Joint cooperation • Joint ownership Collective work • Usually the leading person 24 What is the benefit of the authorship to a program? Right to. Rights for geeks - adapting the computer program to your needs • The unauthorised adaptation is an infringement - Exemption - to achieve the interoperability with other program - Back-up copy is permitted - Right to observe, study or test the functioning of the program -< Rightto use a copy program Decompilation When it is permitted P A Needs it for interoperability It is necessary (not available otherwise) Q Not for purposes of creating similar product • Right to use a copy program Decompilation • Needs it for interoperability is possible when • It is necessary (not available otherwise) • Not for purposes of creating s imilar product Exhaustion of rights The first sale in the Community of a copy of a program by the rightholder... shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof. CASE LAW SAS software - C-406/10 SAS software - C-406/10 • SAS INSTITUTE • developer of analytical software • Base SAS - enables users to write their own programs • WPL • Competitor • Programmed something identical to Base SAS • the same inputs would produce the same outputs • Says it is OK to study programme • Says it is OK to emulate functionality Argument of the SAS • WPL did not have the right to acess the source code ! • WPL violated copyrights in manuals • WPL copied certain ^components" if not the whole program Court of justice (SAS software) • to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress • protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs provided that they refrain from copying • WPL did not make a decompilation, they reproduced functionality Conclusion no. 1 Neither the functionality of a computer program nor the programming language and the format of data files used in a computer program ... constitute a form of expression of that program and as such, are not protected by copyright in computer programs for the purposes of that directive. A licensee is entitled to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program. CJEU - It is enough to have a license to use Licence to explore Does not need an expressed license to observe, study and test Discussion • If the functionality is not protected by software (comp. Programme directive), is it protected by something else? Legal protection of data and databases 14.12.2022 Is a very inaccurate question WHO OWNS Ownership is /•V possession of the THE DATA? storage medium rights Better question is "who owns IP rights to the data" I.I U II 1 Protects Database Authorship collection of IP RIGHTS TO THE DATA the data a Sui generis Protects the database rights Database 31 DATABASE - legal definition 1) Collection of independent elements 2) systematically or methodically arranged 3) Individually accessed DATABASE AS A COPYRIGHTED WORK What about... Wee nez 35 nilionu =.niinkii veMoiu a videokhpu Prochaiet infmfcy ~~ podle kalegofii , 14.12.2022 8 Awarded by European regulation no 96/9/EC The aim was also to safeguard the investment of database makers a To ensure that the legitimate interests of users of information contained in databases were secured. 0 Creative input * Sweat of the brow? Origina • Enjoy copyright protection • Have creative element Non-Origina • Lack creative element • Require substantive investments to produce • Need sui generis protection 33 Sui generis database right What do we protect Copyright to the database Scope This Directive concerns the legal protection of databases in any form. • Electronic • Non-electronic Without prejudice to provisions relating to: • the legal protection of computer programs; • rental right, lending right and certain rights related to copyright in the field of intellectual property; • the term of protection of copyright and certain related rights. m Databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. e copyright protection of databases svided for by this Directive shall not extend snd shall be without Author The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the rightholder by that legislation. expression of the DB protectable by COPYRIGHT The author of a database shall have the exclusive right to carry out or to authorize: • temporary or permanent reproduction by any means and in any form, in whole or in part; • translation, adaptation, arrangement and any other alteration; • any form of distribution to the public of the database or of copiesthereof. • any communication, display or performance to the public; Co-Authorship Where collective works are recognized by the legislation of a Member State, holding the copyright. In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly. In addition, with respect to online materials, protected databases include: (T. Alexander Kley - The European Database Directive In Perspective ) elections of company registers,* adverti: ,ovie schedules, • addres: 3ws articles and headline :al estate information, • job records and markets, ■ financial information, ■ poems, medical lexico te blinks, ticketing event data, websites in general, as collections of webpages, are presumptively protected unde the Directive so long as there was substantial investment in their content. ■ inally, in the case of electror materials, protection may extend to collections of em; addresses, demographic information, and map derivations. ADV-Firmenbuch, Austrian Supreme Court ections of self-help groups, fOberste Gerichtshof) (Apr. 9, • public exhibition catalogues, 2002). Sui generis Rights NON original databases Right for the maker of a database which shows that: substantial investment • qualitatively and/or • quantitatively in either the: • obtaining, • verification or • presentation of the contents Content of the right prevent extraction » shall mean the permanent ortemporary transfer of the contents of a database to another medium by any means or in any form prevent re-utilization » any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission. Sui generis right can be exhausted • The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; Difference between original and non-original protection Term of protection Copyright • Regular copyright Sui generis right • fifteen years from the first of January of the year following the date when the database was first made available to the public or • 15 years after the completion (if never made public) What about any update of the database ? Commercialization Sale/transfer License • Only sui generis. • Sui generis right • Copyright Computer program associated with the database • Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means. Trade secret Information with commercial value Protected by law Employees Confidential information Contractual clause Non disclosure agreement At the beginning of cooperation Taksk no. 1: what is google search? EXCEPTIONS ■ The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or reutilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Almost every software contains certain database • Files, libraries, data, fonts, images • Could be either copyrighted if they are unique and expressed • Could be protected by sui generis, if they are acorn mpanied by sufficient investment Database and software 5 Questions U II 1 Data Protection and GDPR 14.12.2022 Basic pillars of re£ filiation „Old" (current) directive „New"GDPR • Broad definition of PD ■ Even broader definition of PD • Title to process PD • Title to process PD • Consent • Consent • Legal entitlement • Legal entitlement • Triangle of Triangle of • Data subject • Data subject • Controller • Controller • Processor • Processor Comparison „Old" (current) directive New"GDPR • 32 Articles 99 Articles • Needs to be adopted by Direct effect member states n 42 14.12.2022 Fire safety analogy? ^^^^^^| FIRE SAFETY 1 C ^^^^^^H GUIDE ■ E Principles / \ Data subject Processor 43 Data processor VS data controller determines the purpose of data processing • One information can be processed by various processors performs certain activities • Provides services • Performs only what controller orders Processing data without consent performance of a contract to which the data subject is party The principle of storage limitation and exception for archiving in public interest r that personal data it subjects for no long are processed ust not be kept in a form which permits identification of data r than is necessary for the purposes for which the personal data f ' olelyfor archiving purposes in the public interest, scientifi cor historical research t information was not originally created or collected for the purposes of archiving Proportionality! Right to object and right to erasure Right to object and right to erasure (right to be forgotten) • he controller shall have the obligation to erase personal data on request, if there are no overriding legitimate grounds for the processing, such as • exercising the right of freedom of expression and information • compliance with a legal obligation • reasons of public interest in the area of public health • archiving purposes in the public interest, scientific or historical research purposes Data protection by design Old concept, newly defined The liability starts even before processing takes place form of good practice of the data controller to design its proces in order to minimize the risks of data protection breaches sesa d systems The GDPR introduces obligation of the controllerto implement technical and organisational measures to ensure and to be able that processing is performed in accordance with this Regulation appro to de priate monstrate The controller is explicitly required to assess the risks, make pla security of the data both at the time of the determination of th processing and at the time of the processing itself ns for the ns for Anonymisation, pseudonymisation and profiling Anonymized • The key to pseudonyms does not exist • can be de-cyphered and the induvial can be tracked and identified ■ pseudonymized data is personal data and fall within the scope of the regulation. • automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects 14.12.2022 General Data Protection Regulation gay—*1 Step 1 - Monitoring Gathering information and identifying personal data in repositories Identification of personal data in all ,, i. ,iL. Identification of the purpose repositories Identification of the data sources Identification of activities related to data processing Employees Competences Step 2 Adopting policies and internal rules • General data protection policy • Privacy (transparency)policy • ... ? 47 Identification of personal data in all Archives/repositories Identification of personal data • definition of "personal data" is very extensive and covers any information that can be directly or indirectly related to an individual • data do not have to be structured, in order to be qualified as personal data • Any information in any media format including photographs, audio and visual records may meet the definition of personal data • even pseudonymized information is to be considered a personal information. Identification of the purpose of processing • Defined purpose for each set of data is necessary to determine whether the institution does require a consent of a data subject or not. • The general regulatory principles of purpose limitation, data minimisation or storage limitation are directly related to the purpose of data processing. • Personal data shall be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed Identification of the purpose of processing • The purpose of data processing is also crucial in: • dealing with the requests for erasure of data or • rightto restriction of processing. • that the purpose needs to be determined at the time of the collection of the personal data • changing purpose of the data processing after the data have been collected is limited by GDPR and restricted to several exactly defined cases. Identification of Activities • Processing of personal data is a daily activity in every public institution or business • governance of personal data has to be based on the purpose the processed data serve • i.e. theirvalue to the organization • After the personal data have been identified, it is necessary to be attribute each set of records to a certain purpose (or purposes) for which they have been collected and processed. Identification of the data sources • Anonymous or pseudonymous? • Is anonymity absolute or relative? • Case C-582/14: Patrick Breyer v Bundesrepublik Deutschland where CJEU ruled that the possibility to combine the data with this additional data must constitute a means likely reasonably to be used to identify the individual Adopting policies and internal rules • General data protection policy addressing privacy by design and default • Privacy (transparency)policy Data protection by design and default • Identify major risks • Keep records • Identify organizational units that are required to take measures to protect these rights. Records • the name and contact details of the controller • categories of data subjects and of the categories of personal data; • the categories of recipients to whom the personal data have been or will be disclosed; • transfers of personal data to a third country or an international organisation, the envisaged time limits for erasure of the different categories of data; • description of the technical and organisational security measures Privacy (transparency)policy • the contact details of the controller and controller's representative; • the contact details of the data protection officer • the purposes of the processing; • the legitimate interests pursued by the controller or by a third party; • the period for which the personal data will be stored, or criteria used to determine that period; • the existence of the right to request from the controller access • information regarding the existence of the right to withdraw consent Self governance • Codes of conducts (40) • Certifications (42) • Binding corporate rules (47) Module 5 Sharing your work and building on the works of others 14.12.2022 How to share information and knowledge THE CATHEDRAL & THE BAZAAR MUSINGS ON LINUX AND OPEN SOURCE BYMCCIJEOTALSHDLUTIDNARY v '¥% ism ml ERICS. RAYMOND Cathedral Bazaar QUO V 4f J The lessons for data-sharing infrastructure ■ TO BOTTOM UP Central authority organises the User fills the data he/she consideres relevant TOP DOWN The central authority seeks, selects and chooses content Organizes it for the convenience of end MUNT 52 Data sharing design and law IP law and DP law is predominantly based on the presumption of "top down" design • It is easy to identify person with responsibility/liability • It is easy to attribute "ownership" MUNI Bottom up approach is a challenge Possible outcomes 1+1=1 - desired outcome - merging two databases into one joint database " 1+1=0 - merging two databases without substantial investment might create dataset without „database right protection" 1+1=2 - mere process of merging two databases does not constitute a substantial investment or original element. Therefore the two database rights exist independently 1+1=3 -the newly created database gains protection but the two original databases are still protected 0+0=1 - ideal situation - the datasets which would not be protected individually are protected as a whole The emergence of "bottom up" in IT brings us new tools, that we are still learning to use • Safe harbor regimes • Codes of conducts • Free licenses II Uli I Main legal issues in data-sharing Intellectual property rights • Authorship of database • Sui generis database rights • Rights to primary data (maybe in the future) Data protection rights, Privacy • GDPR, general privacy rules Rightto access to information • Public sector information • Knowledge rights • Data-mining exceptions «-»»—'•'— 11 UN I Right to know (?) and information access T Freedom of speech There are other rights a that have to Freedom of information be balanced towards m Freedom of the arts and sciences "restrictive rights" Transparency of public sector 1 It is not desirable to monopolize rights to mere information. Free software IThe freedom to study how the program works, and change it so it does your computing as you wish (freedom 1}. The freedom to The freedom to redistribute copies so distribute copies of your you can help your | modified versions to neighbor (freedom 2}. II others (freedom 3}. Open software • 1. Free Redistribution • 2. Source Code • 3. Derived Works • 4. Integrity of The Author's Source Code • 5. No Discrimination Against Persons or Groups 6. No Discrimination Against Fields of Endeavor • 7. Distribution of License • 8. License Must Not Be Specific to a Product • 9. License Must Not Restrict Other Software • 10. License Must Be Technology-Neutral Legal typology • Strongly protective licences - "viral licences" - GNU General Public License • Weakly protective licences - Lesser General Public License (LGPL) • Permissive licences - Author's crediting - BSD License, MIT License