PROTECTION OF INTERLECTUAL PRPOERTY RIGHTS IN ICT

Executive Summary.

This study aims to expand the scholarly knowledge on the protection of intellectual properties, creations and ideals of human beings that are intangible but can in turn be sold, bought and owned. There are a number of forms of intellectual properties majorly presented as trademarks, patents, copyrights and so on. The intellectual law is widely used to accord inventors the right of ownership, distribution, usage and profiting and also guide other interested parties on how to access, modify and preserve the format of the properties as being used for their benefit.

Protection takes many forms, traditionally gazette under monopoly privileges in Britain where art forms or statues were accorded such protection from creating similar structures. In the early 2000s, it was observed that Intellectual properties regime had evolved taking on a diverse direction in different countries globally. Intellectual Properties are described characteristically under the Information policy, the set of all public laws, regulations and policies that encourage, discourage, or regulate the creation, use, storage, access, and communication and dissemination of information. It thus encompasses any other decision-making practice with society-wide constitutive efforts that involve the flow of information and how it is processed. The IP concept is exhibited under digital environment, such as the digital divide, economic regulations, freedom of expression, confidentiality or privacy of information, information security, access management, and regulating how the dissemination of public information, goods and services occurs.

Keywords: Intellectual Properties, Law, protection, trademarks, copyright, patents

INTRODUCTION

Intellectual property rights (IPR) have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. IPR provide certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation. There are several types of intellectual property protection like patent, copyright, trademark, etc. Patent is recognition for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial application. IPR is prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity. Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty

intellectual property (IP) are intangible creations generated in the human minds as endless number of ideas that may turn into valuable assets and start bringing profits(“What is Intellectual Property ? WIPO,” n.d.).

Like any real personal property, IP can become a subject of contention; therefore, it needs legal protection. Intellectual objects share many common features with physical objects, so they can be sold, bought or given away.

Intellectual properties (IP) are presented in various forms with the most vivid examples being:

• Songs, music, pieces of literature, photos, videos, web content and other artistic works
• Commercial product names, images, symbols, designs, phrases, brands, etc.
• Inventions and discoveries

If a person creates or invents something exceptional and useful, it makes sense that he or she should have the right to use this creation and gain financial benefits, while no one else could assume such a right. In practice, it may be hard to control the usage of IP objects since they are intangible and have no physical limits. Numerous people can copy and consume such goods even though it’s illegal.

There has been an effort to legally protect such intangible creations for over a century but finally at the end of the 20th century the protection of intellectual property rights came into common use. The main aim of IP protection is to guarantee authors their ownership rights and to take legal actions against anyone who copies and uses their work without permission.

Another benefit of the IP protection system is that it encourages innovations and creates favorable conditions for creativity to flourish. This is good for separate organizations (Identity), every industry, and the whole country’s economy. Intellectual property rights protection fosters the technological development and economic growth, attracting investments and creating new opportunities for citizens

There are a number of intellectual property and they are four popular types namely patents, trademarks, copyrights, and trade secrets as discussed below with corresponding protection measures.

1.      Patents; refers to a protection document certifying the exclusive right and authorship of an invention. It is granted to an inventor for a limited period of time by the governmental executive authority on intellectual property, e.g. United States Patent and Trademark Office, Uganda Registration Services Bureau

International regulation is carried out by:

• the World Intellectual Property Organization (WIPO)
• the United International Bureau for the Protection of Intellectual Property
• the World Trade Organization (WTO) via TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement

In the Ugandan Context Patents are registered and issued or projected by Uganda Registrations services bureau. The length of patent protection varies depending on the country and the patentable subject, but usually, it is about 20 years.

The author gets a patent in exchange for public disclosure of all the details of an invention. To use a patented innovation for your purposes, you have to pay a royalty fee to the author or purchase a manufacturing license.

What can be patented?

An invention should satisfy three patentability criteria to be granted a patent:

• Novelty (it is something completely new, not known from the existing technologies)
• Non-obviousness (it is not a modification of something but a newly invented solution that is not obvious to a specialist)
• Industrially applicability (it can be used in industry, agriculture and other fields)

The compliance of the invention with patentability criteria is determined by state experts.

How to apply

A patent is the most difficult form of IP protection to get. The application procedure is:

• Complicated (it may include many claims that describe and define an invention; almost all applicants need professional/legal help)
• Expensive (cost includes an application filing fee, attorney fees, examination fees, and patent maintenance fees paid yearly; total price varies from $5,000 for domestic patents to up to $100,000 for international ones)
• Time-consuming (it may take up to five years)

Apply for a patent only in case it is right for your business.

2.      Trademark; refers to a sign that represents the products or services of a certain manufacturer. Every company should have its own trademark so that consumers could easily identify its goods and services in the market and distinguish them from competitors.

You can register any sign that can be represented graphically (in terms of sound trademarks, it is a musical notation). It should also correspond with the following requirements:

• It must make a product distinctive for customers
• It must not deceive customers regarding the quality, the nature, or the origin of a product or a service
• It must not be a simple description of a product or a service
• It must be in conformity with laws, public policy, and morality

How to register

To apply for national registration, an applicant should provide a clear reproduction of the trademark (including all desired colors, forms and other features) and a list of products and services that would be identified by this mark. The application is examined in the national office and, if no issues arise, the mark becomes registered.

At the international level, trademarks are registered by the Madrid system or the Madrid Protocol, administered by the WIPO. International registration must be necessarily preceded by a national one.

The entire procedure generally takes up to a year. The term length of a registered trademark is potentially indefinite. It can be canceled only in case the holder doesn’t use it for a lengthy period. That’s why many trademarks are indicated on goods together with symbols ® or ™, meaning the mark is registered and in use.

THERE ARE DIFFERENT TYPES OF TRADEMARKS AS ILLUSTRATED BELOW:

3.      Copyright; refers to a term that grants legal rights to creators of different works of cultural value such as:

• Songs and music
• Literature and writing works
• Drawings, paintings, maps, etc.
• Sculptures and architectural works
• Photos and films
• Computer software
• Web content

Copyright protection provides the author with two types of rights:

• Moral rights allow the author to be considered as the creator of the work. This right can’t be transferred to anyone else.
• Financial rights allow the author to use his or her creation in different ways (make and distribute copies, perform in public, broadcast, etc.) and get financial rewards for it.

How to obtain copyright protection?

A formal registry of copyright works doesn’t exist. The creator gets copyright protection automatically at the date of the creation. The one and the only requirement is that the work must be original, i.e. created using exclusively the author’s intellectual resources, not a copy, transformation or modification of some other work. You can mark your work with your name, signature, date or the copyright symbol ©, but it doesn’t affect the level of protection you have.

Some countries, however, have laws on copyright registration. There is also the international Berne Convention for the Protection of Literary and Artistic Works that can be used to protect your work in other countries.

As a rule, the copyright term lasts during the author’s life and 70 years after their death. The difference concerns anonymous or pseudonymous works for which the term lasts 95 years from the first publication or 120 years from the year of its creation.

INTELLECTUAL PROPERTY LAW

Intellectual property law deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works. Just as the law protects ownership of personal property and real estate, so too does it protect the exclusive control of intangible assets. The purpose of these laws is to give an incentive for people to develop creative works that benefit society, by ensuring they can profit from their works without fear of misappropriation by others.
Article I, Section 8 of the U.S. Constitution gives Congress express authority to grant authors and inventors exclusive rights to their creations. Section 8 also gives Congress the power to regulate interstate and foreign commerce, providing further support for its right to legislate in this area.

Intellectual property laws passed by Congress are administered by two government agencies, the U.S. Patent and Trademark Office, and the U.S. Copyright Office.
Patents give inventors the right to use their product in the marketplace, or to profit by transferring that right to someone else. Depending on the type of invention, patent rights are valid for up to 20 years. Qualifying items include new machines, technological improvements, and manufactured goods, including the "look" of a product. Patent protection will be denied if an invention is found to be obvious in design, not useful, or morally offensive.

Trademarks protect symbols, names, and slogans used to identify goods and services. The purpose is to avoid confusion, deter misleading advertising, and help consumers distinguish one brand from another. Since the goal is to distinguish, generic or purely descriptive marks may not qualify. Rights can potentially last forever, and they are obtained by simply using a mark. While not required, owners can register their marks for additional protection.

Copyrights apply to writings, music, motion pictures, architecture, and other original intellectual and artistic expressions. Protection is not available for theories or ideas, or anything that has not been captured in a fixed medium. The act of creation itself produces a copyright and unpublished works are still protected. Use of a copyright symbol and date is common, but not mandatory. Most copyrights are valid for the creator's lifetime, plus 70 years.

PROTECTION AGAINST INFRINGEMENT

Infringement refers to the unauthorized use of intellectual property. To protect against infringement, owners should take steps to put the world on notice that their rights exist. Providing notice helps deter infringement by making the owner's rights more visible to those who might inadvertently violate them. It also triggers additional legal benefits, and puts the owner in a better position to prosecute an infringement in court, if that becomes necessary.
Inventors can give notice of their rights by marking their product with the patent number assigned to it by the Patent and Trademark Office. The label "patent pending" can also be used to discourage others from copying the design before the patent is awarded. Notice of trademarks and copyrights is given by placing the appropriate symbol (™, ©, etc.) on the material, and then registering the mark or copyright, so it can be added to the government's database.

If infringement does occur, rights to intellectual property can be enforced in federal court. Before filing a lawsuit, however, owners will want to consult with an attorney and carefully consider whether litigation is in their best interests. Infringement cases are expensive to prosecute, and there is always a risk that the owner's rights, once held up to the scrutiny of a court proceeding, will be revealed as invalid or less extensive than the owner believed.
In the event an owner of intellectual property does sue, and the lawsuit is successful, a number of remedies will be available. The court can order an injunction, meaning the infringer must stop what it is doing. Substantial money damages may also be available. In addition, once the owner's rights are established in court, the infringer may agree to a license agreement. This allows use of the intellectual property to continue, with payments going to the owner.

Rights to intellectual property can be incredibly lucrative, making individuals huge sums of money. Infringement claims have also bankrupted large, profitable companies without warning. With so much at stake, anyone dealing with issues in this area of the law should seek the advice of an attorney. Firms specializing in intellectual property law are available to help owners who are looking to establish, profit from, or defend their rights.

FAIR USE IN COPYRIGHT LAW

The fact that an artist’s copyrighted work has been copied does not necessarily mean that copyright infringement has taken place. The same law that gives copyright ownership to the original creator of a work also grants everyone else a general privilege of ‘fair use’ of that work.

The fair use doctrine is a defense against copyright infringement. It permits courts to avoid rigid application of the copyright statute when on occasion it would stifle the very creativity which the law was designed to foster, namely to ‘promote the Progression of Science and Useful Arts'.

Section 150-153 of the Copyright Act defines fair use as any dealing with copyrighted material for the purposes of ‘criticism; review; parody; news reporting; teaching or research'. If the work is used for any of these purposes, no copyright infringement can be found.

Factors for Fair use consideration

• The purpose and character of the use including whether such use is of a commercial nature or is for non-profit educational purposes. The threshold question when fair use is raised in defense is whether the use in question can reasonably be perceived as a parody. There must also be a ‘transformative use’ of the work.
• The nature of the copyright work including whether the work is published or not.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

Out of the fair use consideration in copyrighting emerges the parody law common in the entertainment and arts industry aimed at achieving innovation and social criticism, one has to copy the targeted art work sufficiently to create a recognizable ‘derivative work’. This is something that ordinarily requires consent of the copyright holder, which may not be forthcoming even for a fee.

THE STEPS INVOLVES IN KEEPING   INTELLECTUAL PROPERTY SAFE.

1. Know what intellectual property you've got: If all employees understand what needs to be protected, they can better understand how to protect it, and from whom to protect it. To do that, CSOs must communicate on an ongoing basis with the executives who oversee intellectual capital. Meet with the Chief Executive Officer and representatives from Human Resource, marketing, sales, legal services, production and R&D at least once a quarter. Corporate leadership must work in concert to adequately protect Intellectual Property.

2. Know where your intellectual property is: If you focus your efforts on your core IT systems to secure IP, you will overlook other areas where it might be stored or processed. These include:

• Printers, copiers, scanners and fax machines: your input/output devices all store the documents they process, and they are typically networked and connected to remote management systems. Proper policies and procedures need to be in place to purge these documents and protect against unauthorized access.
• Cloud applications and file-sharing services: These might be company-managed or shadow IT. You need to know what your employees are using so you can restrict unauthorized cloud services and ensure that company-sanctioned services are properly configured and secured.
• Employees’ personal devices: An employee might email a document home, typically for benign reasons. Educate your employees on the proper handling of IP and have monitoring systems in place to track where your IP is being sent.
• Third-party systems: IP is often shared with business partners, suppliers, or customers. Make sure your contracts with those parties define how those third parties must secure your IP and have controls in place to ensure those terms are followed.

3. Prioritize your intellectual property: CSOs who have been protecting IP for years recommend doing a risk and cost-benefit analysis. Make a map of your company's assets and determine what information, if lost, would hurt your company the most. Then consider which of those assets most at risk of being stolen. Putting those two factors together should help you figure out where to best spend your protective efforts (money).

4. Label valuable intellectual property: If information is confidential to your company, put a banner or label on it that says so. If your company data is proprietary, put a note to that effect on every log-in screen. This seems trivial, but if you wind up in court trying to prove someone took information they weren't authorized to take, your argument won't stand up if you can't demonstrate that you made it clear that the information was protected.

5. Secure your intellectual property both physically and digitally: physical and digital protection is a must. Lock the rooms where sensitive data is stored, whether it's the server farm or the musty paper archive room. Keep track of who has the keys. Use passwords and limit employee access to important databases.

6. Educate employees about intellectual property: Awareness training can be effective for plugging and preventing IP leaks, but only if it's targeted to the information that a specific group of employees needs to guard. When you talk in specific terms about something that engineers or scientists have invested a lot of time in, they're very attentive. As is often the case, humans are often the weakest link in the defensive chain. That's why an IP protection effort that counts on firewalls and copyrights, but doesn't also focus on employee awareness and training, is doomed to fail.

In most cases, IP leaves an organization by accident or through negligence. Make sure your employees are aware of how they might unintentionally expose IP. According to a February 2019 study by Egress Software Technologies, the most common technologies through which sensitive data like IP are accidentally breached are:

• External email like a Gmail or Yahoo account (51 percent)
• Corporate email (46 percent)
• File sharing via File Transfer Protocols(FTP) (40 percent)
• Collaboration tools like Slack or Dropbox (38 percent)
• SMS or instant messaging apps like Whatsapp (35 percent)

With email, IP might be sent to the wrong person because:

• The sender used a wrong address--for example, Outlook auto-inserted an email address for someone other than the intended recipient
• The recipient forwarded the email
• An attachment contained hidden content, such as in an Excel tab
• Data was forwarded to a personal email account   

7. Know your tools to protect intellectual property: A growing variety of software tools are available for tracking documents and other IP stores. Data loss prevention (DLP) tools are now a core component of many security suites. They not only locate sensitive documents, but also keep track of how they are being used and by whom. 

Encrypting IP in some cases will also reduce risk of loss. The Egress survey data shows that only 21 percent of companies require encryption when sharing sensitive data externally, and only 36 percent require it internally.

8. Take a big picture view: If someone is scanning the internal network and your intrusion detection system goes off, somebody from IT typically calls the employee who's doing the scanning and tells him to stop. The employee offers a plausible explanation, and that's the end of it. Later, the night watchman sees an employee carrying out protected documents, and his explanation is "Oops...I didn't realize that got into my briefcase." Over time, the human resources group, the audit group, the individual's colleagues, and others all notice isolated incidents, but nobody puts them together and realizes that all these breaches were perpetrated by the same person. This is why communication gaps among infosecurity and corporate security groups can be so harmful. IP protection requires connections and communication between all the corporate functions. The legal department has to play a role in IP protection. So does human resources, IT, R&D, engineering, graphic design and so on.

9. Apply a counter-intelligence mindset: For many organizations do set up internal control policies and teams that are viewed as spies within your own company, they are tasked with thinking through such tactics that lead you to consider protecting phone lists, shredding the papers in the recycling bins, convening an internal council to approve your R&D scientists' publications, or other ideas that may prove worthwhile for your particular business.

10. Think globally: Over the years, France, China, Latin America and the former Soviet Union states have all developed reputations as places where industrial espionage is widely accepted, even encouraged, as a way of promoting the country's economy. Many other countries are worse. A good resource for evaluating the threat of doing business in different parts of the world is the Corruption Perceptions Index published each year by Transparency International. In 2016, the Corruption Perceptions Index ranked the following 12 countries as being "perceived as most corrupt": Somalia, South Sudan, North Korea, Syria, Yemen, Sudan, Libya, Afghanistan, Guinea-Bissau, Venezuela, Iraq and Eritrea.