Data Science and Law Module 3

IP Relative Rights

legal entitlements that are enforceable only against specific, designated people, rather than the entire world

IP Property Rights

Absolute, Includes Copyright, which also has Moral Rights

Moral Rights

Not transferable, protect the spiritual, personal connection between an artist and their creation

Reasons for Intellectual Property Rights (IPRs)

Incentive to create, innovate, share

Control, ability to reap financial rewards

Create exclusivity and rivalry

Trademarks

a badge of origin, distinguishing sources of one party from others

Requirements of Trademark

1. a sign,

2. capable of being represented graphically, and

3. the sign needs to be dinstinctive (as to origin)

What can a trademark be?

Words, including personal names, designs, letters, numerals, the shape of goods or their packaging

Trade Secret Requirements

Knowledge that is not readily accessible

Commercial Value

Subject to reasonable steps by person lawfully in control of knowledge to keep it secret

Characteristics of Trade Secret

Cheaper than patent protection but not entirely free

Protection against improper appropriation/disclosure

Viable if barrier is high and infringement cannot be detected

Requirements of a Patent

Invention, Novelty, Inventive Step, Industrial Application

Pros of Patents

• Exclusive rights

• Court actions (easier to enforce)

• Base for loans

• Limited in time (20 years)

Cons of Patents

• High cost (€30 000 – 60 000, incl. legal fees)

• Disclosure requirement

• Limited in time (20 years)

Berne Convention for Copyright Protection

Literary and artistic works

Requirements for Copyright

Originality: own intellectual creation, creator made free and creative choices

Exclusive Rights Consists of..

Exploitation Rights, Moral Rights

Categories of Exploitation Rights

Reproduction, Forms of Making Public, Adaptation, Translation, Arrangement

Reproduction (Exclusive Rights)

direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part

ACI Adam and Others

the right to make copies for private use does not apply to pirated or illegal sources

Communication to the Public

Refers to the exclusive right of a copyright holder to authorize or prohibit any transmission or retransmission of their protected work to an audience not present at the source

2 Requirements for Act of Communication

An act of communication

To a (new) public

An act of communication

An act of communication occurs whenever a work is made available to people in a way that they can access it, regardless of whether they actually choose to view or listen to it

The "Public"

an indeterminate and fairly large number of potential viewers or listeners

C-466/12 Svensson

The owner of a website may redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site

C-466/12 Svensson exception

Provision of clickable links to protected works constitutes an act of communication if the communication is directed at a new public (a public that was not taken into account by the copyright holders) ex: link bypassing a paywall to allow free users to access the content

C-160/15 Sanoma-GS Media

hyperlinking to a work published without authorization can be an infringement, depending entirely on knowledge and profit intent

Art 5(1) InfoSocDir

Temporary, necessary reproductions are allowed (ex. caching of web images)

Art 5(2) InfoSocDir

Exemptions for reproduction (digital cache, private copying, archiving ex. publicly accessible institutions)

Art 5(3) InfoSocDir

Exemptions for communication of copyrighted work

Subsections of Art 5(3)

Criticism or Review, Research or Private Study, Religious Celebration, Architecture or Sculpture, Incidental Inclusion (accidentally included), Caricature or Parody, Demonstration or repair of equipment, building reconstruction, analogue uses of minor importance (limited traditional paper/analogue exceptions)

Digital Single Market Article 3

Text and data mining is allowed for the purposes of scientific research, as long as they have lawful access

Rights waived in InfoSoc for DSM Article 3 to be Legal

Art 5(a): Reproduction right: researchers allowed to copy data

Art 7(1): extraction: researchers allowed to extract databases

Art 15: researchers allowed to scrape articles

Digital Single Market Article 4

Individuals and companies are allowed to scrape data from copyright holders provided that they do not opt out

According to the Berne convention, where do computer programs fall under?

Literary works

EU Software Directive

Defines rights for Copyright Holders of Computer Programs

EU Software Directive Article 4

Defines Restricted acts:

Reproduction; translation (from 1 language to another); adaptation; arrangement; any other alteration; and distribution to the public.

EU Software Directive Article 5

Legal exceptions for users or buyers of computer programs:

necessary or reasonable use (fixing bugs)

Right to observe, test or study code (if you have right to use)

EU Software Directive Article 6

Standards for Decompilation:

Translation allowed for interoperability (hardware compatibility)

Cannot be shared or cloned

Creative Commons Licenses

Public Domain (CC0), Attribution, ShareAlike, Non Commercial, Non Derivative

Public Domain

All copyrights waived by creator, subsequent users can modify and restrict in any way possible

Attribution

Attribution must be given to original creator

ShareAlike

Modified works must be shared on same terms as original

Non Commercial

Others can share use and modify for non commercial purposes

No Derivatives

Others can copy, use or share work without modification

Database legal definition

a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

Scope of Databases

Can include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts

Article 3 Database Directive

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

Article 7(1) Database Directive

Sui Generis Right: Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment

What does Substantial Investment entail?

Obtaining and/or Verification, and/or Presentation

What does Substantial investment not Entail?

Creation of materials themselves (to discourage sole source databases)

Article 7(2-5) Database Directive

Constitutes what is considered Infringement of Sui generis

2 Major Infringements of Sui Generis

Extraction and Reutilisation

Extraction Infringement of Sui Generis

Permanently or temporarily copying at least substantial part of database to another medium

Re-utilisation Infringement of Sui Generis

Making the contents available to the public (physical, commercial, digital)

Lawful Users (Article 8 Database Directive)

May extract and/or re-utilize insubstantial parts of the contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever of a database that is public

When is a user no longer lawfully using the database?

Repeated and systematic extraction and/or reutilization of insubstantial parts (= everything outside substantial part; milking)

Article 43 Data Act

Prevents sui generis from being applied to data generated from data generating devices