Mach Dein Ding: The Stuff We Make in Legalese (Creative Commons: Geistiges Eigentum neu gedacht)

Crea%ve Commons geis%ges Eigentum neu gedacht

Peter Troxler [email protected]

Mach Dein Ding The Stuff We Make in Legalese

Peter Troxler [email protected]

Programme

•  Intellectual Property – Thinking in legal terms about “the stuff we make” –  IP protec%on mechanism

•  Sharing •  Crea%ve Commons – Business: “How to make money with free”

•  Q&A

Intellectual Property

•  the no%on, that the results of intellectual or crea%ve work have the same (legal) quali%es as physical property

•  this idea makes some sense with unique artworks

•  hard to understand why something that can be copied without taking away the original should be property

History of Patents •  Patents apparently existed in ancient Greece •  Monopolies, granted by the kings, e.g.

–  1105 Count William of Mortagne grants a patent to a Norman abbot for erec%ng wind mills

–  1449 Henry VI grants a patent to John of Utynam for making stained glass

•  15th century Venice: patents on glass-‐making, mainly to control the trade

•  1624, UK: Statute of Monopolies – Parliament act against monopolies granted by the Crown

= monopolies should be granted only for the introduc%on of new manufactures to the inventor

•  1790 patent law in the US •  1791 patent law in France

History of Copyright •  15th century Europe: the prin%ng press •  Crown & church felt a need to control prin%ng – license to

print and trade books (i.e. censorship) •  England, 16th century: printers guild – Sta%oners’ company •  1709 Statute of Anne An Act for the Encouragement of

Learning, by ves7ng the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein men7oned

= trade regula%on –  limi%ng the term of protec%on –  breaking up the monopoly of the Sta%oners’ Company: copyright availability to anyone

Intellectual Property Protec%on

•  protec%on of the commercial* interests of a creator/inventor

•  a monopoly to use the crea%on/inven%on (thing) for commercial gain

•  various types or protec%on, depending on the type of thing

•  some types arise automa%cally, some types only on registra%on

* in some types and legisla%ons also moral interests

Fab Charter Secrecy: designs and processes developed in fab labs must remain available for individual use although intellectual property can be protected however you choose •  Sharing for individual use – learning •  This is provided for in some of the legal IP protec%on mechanisms (privat

use, educa%onal “excep%on”, fair use

The Stuff We Make What type of thing

Things that work

Ornamental things

Beautiful things

Electronic cirquits

Code (Software)

Documen-tation


Legally speaking

Things that work

inventions (technology)

Ornamental things

industrial designs

Beautiful things

works of art and literature

Electronic cirquits

? work of art and literature

Code (Software)

invention / work of art

Documen-tation

work of art and literature


Legally speaking

Protection mechanism

Things that work


Patent 1

Ornamental things

industrial designs

Industrial design right 2

Beautiful things


Copyright

Electronic cirquits


Copyright

Code (Software)


Patent / Copyright

Documen-tation


Copyright

1 also: Utility model 2 registered / unregistered (EU); also Trademark: distinctive sign or indicator

Patent •  A patent consists of a set of exclusive rights granted by a sovereign state

to an inventor or their assignee for a limited period of %me in exchange for the public disclosure of an inven%on.

•  The rights typically include the right to prevent others from making, using, selling, or distribu%ng the patented inven%on without permission.

•  A patent is granted upon applica%on •  Typically a patent applica%on must include one or more claims defining

the inven%on which must meet the relevant patentability requirements such as novelty and non-‐obviousness.

•  A patent lasts normally 20 years.

Copyright •  Copyright gives the creator of an original work exclusive rights: •  Copyright it is "the right to copy", the right to determine who may

financially benefit from it, who may adapt the work to other forms, who may perform the work (related rights); and it gives the creator the right to be be credited for the work, not to have it falsely akributed, and to not have their work used in a derogatory or prejudicial manner (moral rights).

•  Copyright arises automa%cally with the (physical) crea%on of the work. In the US, copyright can be registered which gives addi%onal rights to recompensa%ons in case of infringement

•  Copyright is applicable to any expressible form of an idea or informa%on that is substan%ve and discrete. Some countries require the no%on of originality.

•  A note on moral rights: those can not be traded. •  Copyright normally lasts 70 years post mortem auctoris

Industrial Design Right •  An Industrial Design Right protects the visual design of objects that

are not purely u%litarian. An industrial design consists of the crea%on of a shape, configura%on or composi%on of pakern or color, or combina%on of pakern and color in three dimensional form containing aesthe%c value. An industrial design can be a two-‐ or three-‐dimensional pakern used to produce a product, industrial commodity or handicran.

•  The rights typically include the right to prevent others from making, using, selling, or distribu%ng the object without permission.

•  The Design Right protec%on is granted upon applica%on with a 12 month grace period (EU) – however in the EU there is the Unregistered Design Right that automa%cally gives protec%on of 3 year from the first disclosure of the design

•  A design must be novel and have individual character •  Design rights last normally up to 25 years in 5 year periods (need to

be renewed)

U%lity Models •  A u%lity model is an intellectual property right to protect inven%ons. This

right is available in a number of many na%onal statutes. It is very similar to the patent, but usually has less stringent patentability requirements.

•  Peky patent (Indonesia), “poor man’s patent” •  Term onen 6 to 15 years

Trademarks •  A trademark is the right to sue for unauthorized use of that trademark •  A trademark requires registra%on (®) – but not in the US, there it is

sufficient to use it in trade, so there also exist unregistered trademarks (™) •  A trademark is typically a name, word, phrase, logo, symbol, design,

image, or a combina%on of these elements. There is also a range of non-‐conven%onal trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound.

•  The registra%on of a trademark can be revoked •  Trademark needs to be maintained (renewed), typically every 10 years,

indefinitely

Integrated Circuit Topologies •  Because of the func%onal nature of the mask geometry, the designs

cannot be protected under copyright law (except perhaps as decora%ve art).

•  Because individual lithographic mask works are not clearly protectable subject maker, they also cannot be effec%vely protected under patent law.

•  So since the 1990s, na%onal governments have been gran%ng copyright-‐like intellectual property rights conferring %me-‐limited exclusivity to reproduc%on of a par%cular layout.

•  Protec%on term is much shorter: 10…15 years •  Protec%on upon registra%on or first commercial use

Trade Secret •  A trade secret is a formula, prac%ce, process, design, instrument, pakern,

or compila%on of informa%on which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over compe%tors or customers. In some jurisdic%ons, such secrets are referred to as "confiden%al informa%on" or "classified informa%on".

•  A company can protect its confiden%al informa%on through non-‐compete and non-‐disclosure contracts with its employees or business partners.


Legally speaking


What is still possible

Things that work


Patent private use, research†

Ornamental things

industrial designs

Industrial design right

private use, inspiration

Beautiful things


Copyright private use, educational

Electronic cirquits


Copyright privat use, educational

Code (Software)


Patent / Copyright

see above

Documen-tation



† WARNING: not in the US


Legally speaking



Sharing mechanism

Things that work


Patent private use, research

Defensive publication

Ornamental things

industrial designs



Waiver

Beautiful things



Creative Commons

Electronic cirquits



Creative Commons

Code (Software)


Patent / Copyright

see above FLOSS licenses

Documen-tation



Creative Commons


Defensive Publica%on •  A defensive publica%on, or defensive disclosure, is an intellectual property

strategy used to prevent another party from obtaining a patent on a product, apparatus or method for instance.

•  The strategy consists in disclosing an enabling descrip%on and/or drawing of the product, apparatus or method so that it enters the public domain and becomes prior art.

•  Therefore, the defensive publica%on of perhaps otherwise patentable informa%on may work to defeat the novelty of a subsequent patent applica%on.

•  Needs to be available to a “relevant audience” (e.g. conference, trade journal)

Crea%ve Commons •  A system of public licenses that grant reuse of copyrighted work •  The strategy is to use a publicly available, standardized license to replace

the normal contractual rela%onship between rights holder and user. •  Rights holder can select, which restric%ons s/he wants to add to the

general permission to use, distribute or perform the work addi%onally to credi%ng the creator and men%oning the license –  Share-‐alike – user must re-‐license deriva%ves under the same license –  Non-‐commercial – use in connec%on with “making money” is not allowed (not even

fundraising for a charity or puung on a blog with Google Ads to cover hos%ng costs) –  No deriva2ves – use only unaltered copies

•  There are (up to now) na%onal versions of the licenses – the idea was to adapt the licenses to na%onal legisla%on. This is probably going to disappear

•  Pay aken%on to compa%bility issues when re-‐using material

Human Readable

Human Readable

Human Readable

Human Readable

Lawyer Readable

10-‐11-‐2008 Crea%ve Commons – Erfgoed delen 28

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<div class=”license”> <a rel="license" href="http://creativecommons.org/licenses/by/3.0/nl/"> <img alt="Creative Commons License" style="border-width:0” src="http://i.creativecommons.org/l/by/3.0/nl/88x31.png" /> </a> </div>

Modular System

CC 0


Legally speaking



Sharing mechanism

Things that work




Ornamental things

industrial designs



Waiver

Beautiful things



Creative Commons

Electronic cirquits



Creative Commons

Code (Software)


Patent / Copyright


Documen-tation



Creative Commons


Waiver •  Example CC0 or "Commons Deed" –  The person who associated a work with this deed has dedicated the work to the public domain by waiving all of his or her rights to the work worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law. •  You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission or giving akribu%on.

•  In the case of design registration –  declare not to have registered –  relinquish any rights:

•  to register the design •  from unregistered design protection (EU)

copyright

design right

copyright

design right

copyright

design right

copyright

de

sig

n

rig

ht

copyright

design right

•  CC license, including CC0, only covers copyright

reproduction, communication, making available to the public, distribution

•  design rights not affected by CC licencse (i.e. designer can still register design right)

blueprint cc-by-…

reproduction

blueprint cc-by-… blueprint

cc-by-…

blueprint cc-by-…

•  CC license, including CC0, only covers copyright

reproduction, communication, making available to the public, distribution

•  design rights not affected by CC licencse (i.e. designer can still register design right)

Proposal Magroni

•  CC+

•  CC license

+ waiver

design registration

•  declare not to have registered

•  relinquish any rights

–  to register the design

–  from unregistered design protection (EU)


Legally speaking



Sharing mechanism

Things that work




Ornamental things

industrial designs



Waiver

Beautiful things



Creative Commons

Electronic cirquits



Creative Commons

Code (Software)


Patent / Copyright


Documen-tation



Creative Commons
