ROLE OF IPR IN THE DEVELOPMENT OF ICT

IPR and Internet

Information technology is going to change the world dramatically. Even by 2020, people will do things differently, think differently, learn things differently and interact with each other differently. Intellectual property Rights has different impacts on the development of ICT.

Intellectual property Rights have a considerable effect on the Development of ICT. As we all know that WIPO is an international organization established in 1970 to promote the protection of intellectual property rights throughout the world and ensure the cooperation of the alliance for administration.

WIPO seeks to strengthen international copyright protection in response to rapid advances in information technology such as the Internet and changes in social conditions.

The term “IPR” encompasses many issues that are not connected to Internet governance. But some IPR issues, particularly those dealing with copyright and trademark, and perhaps software patents, are central to Internet governance. The creation of ICANN was prompted largely by the desire to protect trademarks in the domain namespace.

Content development and an open and internationally equitable mechanism for adjudicating Intellectual Property Rights (IPR) are vital to realize a vision for sustainable cultural identity and diversity and make accessible the benefits of a knowledge society. It could recognize that the role of IPR as critical to facilitating economic development, but it must be balanced by the right for circulation and sharing of knowledge, including recognizing the importance of Free and Open Software and alternative licensing regimes. Council of Europe conventions concerning regulating content and activities deemed to be harmful or exploitive needs to be addressed through appropriate national legislation, and international law.

The term intellectual property rights describe the set of different regulatory concepts that control the production and usage of intellectual objects. The three main concepts are patents, copyright and trademarks.

In the context of WGIG a question that must be addressed is to what extents IPR issues are changed in form and substance as a consequence of the Internet and to what extent do the issues remain ones of managing IPR in a digital world.

The Internet allows the relatively low-cost duplication and relatively easier worldwide distribution of intellectual objects; an attribute of the Internet that is in part allowing the rapid and effective diffusion of IP across many countries and users- and for example, makes much of the Internet function, facilities the development of the content for e-commerce, and opens new opportunities for cultural and economic development. The ease, however, of duplication and distribution also makes IP highly vulnerable on the Internet.

The nature of the Internet makes it extremely hard to enforce exiting IPR legislation without the cooperation of the users. Technical attempts to attach copy-protection measures or the use of Digital Rights Management (DRM) techniques to intellectual objects have until now been mostly unsuccessful or contested by consumers since they prevent all kinds of duplication of the content, including those granted to users by law to protect public and personal access. The enforcement of this legislation through police actions would possibly require the introduction of such a high degree of personal surveillance that some fundamental basic rights such as privacy and freedom could be endangered. There is no agreement yet on the proper balance between these human rights and the need to protect the interests of intellectual industries. So, in the case of the Internet, the protection would be narrow. The patent is non – strategic to the business.

Some Views on Intellectual Property RightsThe first extreme view on intellectual property is to see it through legal rights securing and restricting its use. From the right holder’s perspective, intellectual property rights are the method to secure intellectual property and exclude others from using it.

Intellectual property is seen as a subject for rights and restrictions. As a strategic tool, this legalistic approach has been extensively used in digital economy-related patenting.

Patent

The logic of patenting is to monopolize ideas. From a theoretical legal perspective, the difference between patent and copyright is clear. Patents protect the idea and copyright its expression. In this sense, a patent is somewhat a higher category above copyright. but in practice, these IPRs overlap. Hence, there might be a possibility to protect information and communication-related product. This is the case of some software products. it is also possible that the information product is by its nature not protectable at all.

Copyrights are more difficult to manage. While patents are determined in the patent claims, there is no strict scope of copyright. It depends on each work and the interpretation of copyright law and treaties, which are in no way solid. But the clear advantage of copyright over patent is its simplicity. Copyright is granted for free and it is granted automatically if the work is original enough.

Considering software, both of these IPRs can be difficult to recognize when developing new products. Also, many firms are simply unable to be up-to-date on the copyright and patents in force and therefore ignore them. This ignorance is many times rational and poses a clear challenge to IPR strategy in the software industry.

What I want to say from the software development perspective, existing IPRs can be seen as restrictions and market barriers. In many fast-growing fields of the digital economy, e.g. in electronic commerce and software industry, there is simply no time to get and analyze data of all the thousands of patents granted. On the other hand, it can be cheaper to produce copyrighted material in-house because there is no time to find out the best providers for outsourced copyright producers and negotiate deals.

The software market and Patent

In the software market, the product has been traditionally distributed with extremely limiting use restrictions, which in practice have been very costly to enforce and monitor. The software itself has not been sold under the trade has been a right to use it. Until recently, other distribution mechanism had no significant effect on the giant players of the field. However, now what has been seen that Open Source and other freely distributed software products have started to gain market position. This has happened clearly in the operating system and database software markets. Parallel to this development has been the Internet boom- the net, as we now know it, runs essentially on free software. Now the question may be asked; what are the possible IPR strategies and what are their implications? It is noted that there are many situations in which the recently much-adored free distribution model fails.

A background assumption here is that the digital economy markets are more and more differentiating. In the one end is the well-known PC based open Internet and on the other are all the closed subnets such as wireless networks.

Software and Possible IPR Strategies

Let us consider three different IPR strategies in the context of the Software market.

From the copyright law’s perspective, the assumption is that all software is proprietary. To treat it free, one must explicitly license it with terms of withholding rights.

In software markets, we can identify three distribution models based on the different strategic use of IPRs:

-         Direct distribution of proprietary software, which is based on the license fee method. Producers of proprietary software are well-established firms with a well-organized organization and capital structures. In this case, the most famous example is Microsoft and its software products.

-         Network distribution of free software in its various forms. These are based on free distribution method and gains are gathered from other sources than licenses and royalties, usually from some sort of service or support. Usually, the firm structure is virtual and rely on strategic alliances and business webs. Other most famous examples are Linux distribution.

-         A middle ground where distribution may happen free but is somehow limited and fee may be applicable in certain situations. This model includes subcategories like shareware, where many popular game programs belong.

Drafting a Software Patent Application

Software Invention Disclosure Material

-                    Functional/Design Specifications

-                    Code or pseudo-code descriptions

-                    Flowcharts

-                    ScreenShots

-                    Software its self

-                    High – level descriptions of software

-                    Marketing materials

The specification should include system components and method components of the invention. The commercial embodiment and alternative embodiments also should be described. But source code should not be included. All sorts of drawings- flow charts, hardware environment, functional block diagrams, data structures and screenshots should be included in this regard.

IPR law might claims what methods implemented in software, a system as a whole, individual system components, computer-readable media (CD-ROM, Floppy etc.), data structures, application programming interface (API), User Interface (UI)

Managing Software Patent Portfolio

 To manage Software patent portfolio we should establish strategic objectives, generate invention disclosures, choosing the most valuable inventions, manage the patent portfolio, control budgets and cost. Managing a software patent portfolio is a difficult but important task, because software changes rapidly, but patents issue slowly. Software developers and their managers are focused on products, not patents. But a software company without patents is vulnerable. We have to establish strategic objectives to focus on the accused infringer, for example, a product-oriented patent strategy, An innovation patent strategy and a market – entry patent strategy. Patents as an offense- if you don’t have a need under your competitor’s patent, or they don’t have any, you can receive money or an injunction. Patents as defence or freedom of action- if you are at risk from a competitor’s patent portfolio, your own patents can be used to force a cross-license.

 Open Source projects

 There has been recently lots of business hype around Linux and other Open Source software projects. The obvious strengths of Open Source software development are usually cited such as theoretically most powerful code development process.

 But it is risky to rely on complex Open Source software because its continuous development lacks the incentive proprietary software has. Developers may abandon the project because they have no obligation to give support and they are in industry terms not committed to the further development of the software. If the software is complex, it does not help much to get the source code since the costs to learn and develop the code can be substantially high. Also, the decentralized structure of Open Source communities is not only their strength but also a weakness. Many Open Source projects are in practice in the hands of very few individuals capable to contribute on them. IPR threats or direct hiring to frame key developers out of the project. In the end, if an Open Source project grows, it needs to reconsider its IPR strategy in the heat of the established proprietary software industry. Therefore, we can not put the emphasis very much on open source projects.

 Electronic Commerce

 The Internet, Intranet, and Extranets provide links between the components of a business and its customers, suppliers, and other business partners – both at home and abroad. This has opened up the opportunity to the trade and commerce sector to engage in three basic categories of electronic commerce applications: business-to-business, business-to-customers, and internal business process. IPR policies and strategies control the Electronic Commerce and its different components considerably.

 Now the time has come to adopt these new technologies in trade and commerce in Bangladesh. The Government, in this context, should promote the use of electronic transactions and create an environment in which these transactions will be completely secure. Authentication of the identities of both buyer and seller or the involved parties in an electronic transaction is crucial to promote e-commerce within the country. A certification authority for issuance and management of digital certificates that are needed to secure electronic transactions has to be established. Use of International credit cards like VISA, MasterCard etc. should be encouraged. At the same time development of the legal framework to provide the guiding principles, rules and legislation for e-commerce should be put in place.

 The participation of developing countries in e-commerce may be enhanced through the provision of development cooperation and assistance to install and update basic telecommunications infrastructure, including through programs such as WIPONET. At the time, it is important that each country establish a framework of intellectual property laws and regulations, concomitant intellectual property services, to reassure intellectual property owners and commercial enterprises that their assets will be protected in an online environment. This legal infrastructure encourages private investment, accelerates economic development and provides a secure foundation on which a digital economy can develop.

Digital Delivery and IPR

 It is clear that developments in digital technologies, and the internet and intranets that they support, have enabled private and public sector enterprises to overhaul their methods for conducting their operations, redefine their services and improve their service delivery. This move toward using digital systems and the Internet to manage workflow, deliver services and provide enhanced access and interconnection to intellectual property information has been embraced by an increasing number of national and regional intellectual property offices.

In common among these initiatives are the issues of integrating new staff with relevant technological expertise, while restructuring existing staff resource: planning for the integration of the new information technology systems; implementing hardware and software platforms, many of which can be costly; addressing security concerns with respect to access, control and exchange of information that become manifest in the digital environment; and reviewing whether the existing policies, procedures, rules and standards must be revised and updated in light of the new electronic methods used.