Professional Practices

Course Code
(SSH-307)
 Topics for Discussions
• Secondary • Remedies For Breach of
Infringement Copyright
• Copy Protection • License and Assignment
• Acts Permitted in Copy Rights
Relation to Copyright • Designs
Works • Trademark
• Fair Dealing • Comparative Advertising
• Back-up of Computer • Pirated Goods and
Programs Offences Law
• Transfers of Works in • Domain Name
Electronic form
 CopyRights
Secondary Infringement
•Like primary infringement, secondary infringement
breaches the civil rights of a copyright owner, but
most importantly, secondary infringement may also
amount to a criminal offence, punishable by a fine
and/or imprisonment. Secondary infringement is
therefore a much more serious matter and is
designed to catch those who trade in, and who
therefore make a profit from, pirated goods; or who
provide the apparatus or premises for infringing
performances of copyright works.
 Copyrights
Secondary infringement occurs, for example, where a
person
•Imports an infringing copy other than for private and
domestic use
•Possesses an infringing copy in the course of a
business
•Sells or lets for hire an infringing copy
•Exhibits in public or distributes an infringing copy in
the course of a business
•Distributes infringing copies otherwise than in the
course of a business to such an extent as to affect
prejudicially the owner of the copyright
 Copy Protection
Introduction
Copy protection also known as content protection ,
copy prevention and copy restriction, is any effort
designed to prevent the reproduction of software, film,
music, and other media , usually for copyright
reasons.
Companies took a decision to prevent the reproduction
so that they will gain benefit from each person who
obtain authorized copy of their product.
Unauthorized copying and distribution accounted for
$2.4billion in lost revenue in the United State only in
1990.
 Copy Protection
Above mention Revenues were impacts on Music and
Video game industry.
it also inconvenience for honest consumers, or it
secretly installed additional or unwanted software to
detect copying activities on consumers computer.
making copy protection effective while protecting
consumer rights is still an ongoing problem with media
publication.
 Acts permitted in relation
to copyright works 6
Some acts are permitted under the 1988 Act, even
though they would otherwise amount to breach of
copyright. The range of these has been extended by
the EC Directive on the Legal Protection of Computer
Programs and by the Copyright (Computer
Software)Regulations 1992 which have amended the
1988 Act. It is not proposed to discuss all of the acts
permitted by the 1988 Act, but rather to select those
of greatest importance for software engineers.
 Fair dealing 6.1

Fair dealing

•To fall within the fair dealing provisions and thus not
to infringe copyright, copying must be for one of the
following purposes:

•Private study, or Research

•Criticism or Review
•Reporting Current Events.
 Fair dealing 6.1

Section 29 of the1988 Act (as amended by the 1992

Regulations) now provides that it is not fair dealing

•To convert a computer program expressed in a low

level language into a version expressed in a high level
language, or
•Incidentally in the course of so converting the program,
to copy it.
 Fair dealing 6.1

How much may be copied 6.1.1

•A difficult issue is how much may be copied under the
fair dealing exceptions. The only generalized answer
that can be given is that “it all depends”, but the
overriding consideration is that the use must be fair
Making back-up copies of computer program
6.2
Section 50A of the 1988 Act provides that
•It is not an infringement of copyright for a lawful user
of a copy of a computer program to make a back-up
copy of it which is necessary for him to have for the
purpose of lawful use
 Making back-up copies of
computer program 6.2
• A licensee is an example of a lawful user.
Any clause in a license or other agreement
which prohibits or restricts the right to make
a legitimate back-up copy is void. However,
Section 50A only authorizes copies
“necessary...for the purpose of lawful use”.
If a program is supplied on floppy disc, then
copied onto the hard disc, no further back
up copies are necessary and no further
copies are allowed
 Transfers of works in
electronic form 6.3
• Section 56 provides that if A had express or implied
permission to use, copy or adapt an electronic work
(e.g. to translate it into another computer language),
or to make copies of an adaptation, then unless
there are express terms to the contrary in the
original license, B is entitled to do the same.
However, if A sells to B, he transfers all of his rights
to B. Thus if A retains and uses any copies himself,
his original license no longer operates, and his use
of the program or of any copies of it will be in breach
of copyright. Section 56 therefore gives permission
to use the work to one person at a time; it does not
allow an increase in the number of authorized users.
 Decompilation for the purpose of
interoperability 6.4
• The European Commission has been very
concerned that Europe develop a strong software
industry. This requires the protection of intellectual
property rights, but not to the extent that further
development of software products is prohibited or
unduly inhibited , Intellectual property rights 143e.g.
by copyright laws.
• One type of advance which steers a course
between protection and development is the
production of programs which are interoperable.
The original program is protected
 Decompilation for the purpose of
interoperability 6.4
Now, Section 29 of the 1988 Act provides that it is not fair dealing
•To convert a computer program expressed in a low level language
into a version expressed in a high level language; or
•Incidentally in the course of so converting the program, to copy it.
However, if the Decompilation is for the purpose of interoperability,
a lawful user may do either of these acts provided:
•It is necessary to decompile the program to obtain the information
necessary to create an independent program which can be
operated with the program decompiled or with another program
(the permitted objective)
•The information so obtained is not used for any other purpose
than the permitted objective
 Error correction 6.5
Under Section 50C of the 1988 Act, the lawful user of
a program (e.g. a licensee) may copy and adapt a
computer program provided this is necessary for his
lawful use and this is not prohibited by any contract
term. Section 50C is widely drafted, but it is stated
that in particular it allows a lawful user to copy or
adapt a program in order to correct errors. This is
rather like the general right to repair property, e.g. a
car
 Databases 6.6
The Database Regulations 1997 introduced a new
Section 50D into the 1988 Act. This provides that it is
not an infringement of copyright in a database for a
person who has a right to use the database to do
anything which is necessary for the purposes of
access to or use of the contents of the database or
any part of it. This means that it will not infringe
copyright if a licensee downloads, i.e. copies the
database or part of it in order to access or use it.
 Databases 6.6
• One other recent addition to the 1988 Act is Section
29(5) which provides that “The doing of anything in
relation to a database for the purposes of research
for a commercial purpose is not fair dealing with the
database
• This is interesting in that the other provisions of the
Act do not draw a distinction between commercial
and non-commercial research.
Remedies for breach of copyright
• In general, a copyright owner has, in an action for
infringement of copyright, all the usual civil remedies of
search and seizure, injunction, damages and an action
for an account of profits made in breach of copyright
• A copyright owner is also given an important power to
enter premises without using force in order to seize
infringing copies, or articles specifically designed or
adapted for making copies, thus allowing seizure and
confiscation of, for example, a computer used to make
illegitimate copies of computer programs; or of
photocopiers; or of equipment used to copy video
tapes etc. There are also special provisions to permit
seizure from street traders.
 Licensing Copyrights
• Copyrights can be licensed to others, called
licensees. When a work is licensed, the copyright
owner retains ownership of the right, but allows
others to use it for all, or for a limited number of
purposes. A license may be exclusive, i.e. it may
give one person only Intellectual property rights
145
• the right to use the copyright; or it may be non-
exclusive, where any number of persons may be
licensed to use it, e.g. licenses used on software,
such as computer games or for word-processing,
which are sold through retail outlets
 Licensing Copyrights
• When a copyright owner dies, copyrights do not
also die, for it will be remembered that copyright,
for example in a literary work, lasts for life plus 70
years 19 . Copyrights can be transferred in a will,
or if there is no provision in a will dealing with
them, they will be dealt with under other rules of
succession. They will also pass on bankruptcy to a
trustee in bankruptcy
 Assignment Copyrights
• An assignment is different. Here a copyright
owner, called an assignor, transfers rights of
ownership to another person, called an
assignee. The assignee therefore acquires
more than a licensee, in that the licensee
merely has the right to use the work in
accordance with the license, and does not
acquire ownership. To give full legal title an
assignment must be in writing, and it must be
signed by or on behalf of the assignor, that is
the person transferring the copyright.
 Assignment Copyrights

• An assignment need not be for the entire copyright

period, e.g. it may be for the first ten years only; and
it may not deal with all facets of the copyright. For
example, a novelist may assign the hardback rights
to one publisher for five years; the paper back rights
to another publisher for six years; the film.
 Designs

It was stated earlier that there can be copyright in

an artistic work, for example a drawing , and that this
normally lasts for the lifetime of the artist, plus 70 years.
This statement must now be qualified. Drawing and
designs, whether on paper, or on any other tangible
medium, or in the form of data stored in a computer, are
frequently used to manufacture industrial items, such as
crockery, furniture, cars, aero planes, ships etc.
 Designs

• How do design laws work? Let us use the example

of a drawing of a machine tool which is to be
manufactured industrially. The drawing itself will be
protected by copyright as an artistic work. Thus if
anyone copies this drawing directly and without
permission, they will be in breach of copyright. Under
the pre-1988 laws, if anyone copied the tool made from
the design drawings, they would be indirectly copying
the drawings and also be liable for breach of copyright
 Trade Marks

What is a trade mark?

•Section 1 of the Trade Marks Act 1994 states that

•A trade mark means any sign capable of being

represented graphically which is capable of
distinguishing goods or services of one undertaking
from those of other undertakings. A trade mark may, in
particular, consist of words (includ-ing personal names),
designs, letters, numerals or the shape of goods or their
packaging
 Trade Marks
How Protect Trade Mark
•There are two ways of protecting trade marks: firstly,
under the Trade Marks Act 1994; and secondly,
protection at common law, under the tort of passing off. It
is not essential to register a trade mark at the Trade
Marks Registry, but a registered mark will be protected
under the Act and at common law, whereas an
unregistered mark has only common law protection
 Comparative Advertising

• Comparative advertising was severely restricted by

the previous Trade Marks Act of1938, which
provided that it was an infringement to “import a
reference” to a registered mark. Thus if Ford
advertised their cars as being cheaper than Volvo
cars, if Volvo was a registered mark, Volvo cars
could bring an action against Ford for infringing their
trademark
Pirated goods and criminal offences

• Piracy of software is a serious problem. Pirated

goods generally account for around 5 percent of
world trade and were the main reason for the
emphasis in the General Agreement Tariffs and
Trade GATT talks on the protection and enforcement
of intellectual property right
Pirated goods and criminal offences

In order to combat piracy, Section 92 of the 1994 Act

states that it is an offence for a Intellectual property rights
153 person with a view to gain, or with intent to cause
loss, to do any of the following without the consent of a
trade mark owner
•Apply a unauthorized trade mark to goods
•Sell or let for hire, or offer or expose for sale or hire,
goods or packaging which bear an unauthorized trade
mark
•Have in his possession, custody or control in the course
of business, for sale or hire goods (or packaging) which
bear an unauthorized trade mark
 The Tort of Passing Off

• The second method of protecting trade marks and

trade names is under the common law tort of passing
off. Passing off is an action used by one trader against
another who imitates the former’s trade mark, trade
name, product get-up or trading style in a way which
causes actual or potential loss, and which causes
confusion amongst the consuming public as to the
source of goods or services
 The Tort of Passing Off
Lord Dip lock said there were five common elements in
an action for passing off
• a misrepresentation

• made by a trader in the course of trade

•to prospective customers or ultimate consumers which

is calculated to injure the goodwill or business of
another, and
•which causes actual damage to that other.
 Domain Name
• If someone wishes to purchase goods from, say, Marks
and Spencer, they may well search on the Internet to
see if M&S have an on-line catalogue. They are quite
likely to guess that the company is registered with the
domain name of Marksandspencer.com
orMarksandspencer.co.uk., i.e., that its domain name is
the same as the name under which it trades, or is the
same as its trade mark
 Quote

WITH THE NEW DAY

COMES NEW STRENGTH
AND NEW THOUGHTS