Notes on basics of IP, Copyright and Trademarks
Some notes on a recent IP, Copyright and Trademarks event I recently went to. It would be a bit longish so please bear with me.
As a Free and Open Source user and Practitioner and somebody who has an interest in copyleft (rather than copyright) I generally do not go to events which talk of Intellectual Property, Copyrights etc. as there is a lot of FUD circulated in such events. A friend who has recently jumped onto the entrepreneurial band-wagon asked me to tag along for the event. The event was organized by POCC and can be seen at their site.
My idea was just to see the event and just be but then I couldn’t. There were so many questions which just remained unanswered and so many queries which had incomplete answers. Most of the people in the audience were from the IT/ITES product or services background and were looking to understand the topics on-hand.
I got a bit upset as there were whole lot of issues which were never taken up.For instance, what was never shared is both Copyright and Patents have a whole lot of issues which do raise cost of doing business. One of the questions asked was about taking code from some forum and linking it to your code which was rightly pointed out that it may have some copyright attached to it but nothing more than that. The problem with Copyright is you never know which code is copyrighted to whom and where. You can only be happy with Copyright once you are below the radar (i.e. don’t grow big) otherwise big companies can and will assert Copyright to any code which might have slipped in your code and arm-twist if they feel your code has value, the end result being you having to bear the cost of litigation at their place of doing business (meaning if it is a U.S. company and they file a suit there you would have to go there) and hence you would be bankrupt sooner or later.
The other thing which has also become much of a nuisance are copyright trolls. This is again a phenomenon which was never looked at.
I was hoping that there would be at least some attention made to the copyleft business models but most of the entrepreneurs just think of copyleft as only the GNU GPL license which also can be an asset in many a ways, but none of the more permissive copyleft licenses were even discussed. For instance, you could use BSD-style licenses for your work and still be happy.
What most people don’t seem to understand is that software is not a stand-alone packaged box which was the case 10-15 years ago. Now, any software is part of an ecosystem and has to continuously change and adapt to complex sets of software in any system. For an end-user perspective, more than ever we are being used to have softwares be a part of a ‘repository’ rather than a stand-alone disk like days of before as variety and number of softwares has exploded to the roof thanks in part to Internet and the resultant FOSS culture.
I have been using GNU/Linux systems for majority of a decade and half and except for gaming (where we still need to evolve quite a bit) there has been no need to use MS-Windows. I dislike the whole bloatware and malware that MS-Windows comes with but this is outside the present discussion. What is also not known to people that BSD and its ilk can be used to do your present way of doing business without affecting much. A good way of understanding how you can use BSD-like licenses is to use the CC illustrations which were made to understand creative commons. So you can put your software in a nice shiny box with a manual and everything and charge a premium and also have a git repository where people who are skilled in compilation can use the code if they want. For support, they file tickets (free testers), provide patches (free code for updates) and sometimes even evangelize the product in question (free advertising). Of course, this also needs nurturing but that is outside the scope of this discussion.
Apart from that, any assumed short-term profits from copyrights would be taken up with constant development, advertising and other expenses. These expenses are much less for FOSS companies as can be seen from budgets say of Mozilla Foundation or Automattic (parent company of WordPress, the software and platform I’m using atm) which are a mere fraction of the kind of business they are generating.
What was also not explored or even discussed was some of the more recent phenomenon, for example Microsoft plunging into ‘Shared Source‘ . While I have no idea whether Shared source did have any successes what is known that even Microsoft has been losing money with box-pushing software vis-a-vis as they did several years ago.
What should have been explored perhaps were business models like those of Hadoop as well as MongoDB, Talend, and Revolution Analytics all of which are driving both markets and implementations to broader markets and making markets where there were none before (esp. for small and medium enterprises). What could have been used as an opportunity to explore even how Yahoo which was a critic of FOSS turned the corner and has benefited from it.
Even on the patent front, they were not clear. The way I understand it, you can’t apply patents to software alone. Patents can only be granted when used in conjunction with hardware. So, for example, if Samsung makes some software which works with only Samsung phones, there could be a patent granted both for the hardware as well as hardware+software combination.
What was not shared that Patents are also not without its ills. The idea of Patents is inherently to have maximum claim, even and above what it does in order to exhort licensing and damages from SME’s who would not be able to protect themselves.This has been known time and again, but for some reason people do not get it. I could tell/share about the broken patent system but even searching ‘broken patent system’ will give readers and interested people more than enough articles and observation than I could share in this small space.
Lastly, there was incorrect information given in terms of Geographical Information. I contacted Dr Dev S. Gangjee, who is a Fellow and Tutor in Law, St. Hilda’s College Associate Professor in Intellectual Property, Faculty of Law, Oxford Director, Oxford Diploma in IP Law and Practice. The gentleman is an academic who has researched GIs for over a decade. This is what he had to say when I asked him about time-limits of GI :-
I’ve spent nearly 15 years being confused and occasionally delighted by GIs – happy to help.
Generally, the answer is very long-term protection.
According to the Indian GI Act, it’s 10 years protection on the initial registration and renewable after that in 10 year increments.
See: http://ipindia.nic.in/girindia/ (the button on the left opening up the FAQ on the registration process).
Since the Indian registrations only formally began in the early 2000s, we’re only now coming up to the first wave of renewals – Darjeeling was the first Indian GI to be registered if memory serves me correctly.
In other countries, especially in Europe and now parts of Asia and Africa (those with sufficient numbers of ‘traditional’ products, protection is also effectively permanent. In the EU there is no need for periodic renewals and once its registered (under Regulation 1151/2012) it continues to be protected so long as it remains a GI in the EU member country of origin. Details of the scheme here: http://ec.europa.eu/agriculture/quality/schemes/index_en.htm
Another very useful comparative resource summarising the GIs laws of 160 countries around the world is here:
Your mention of 20 years makes me wonder whether that was a reference to patent protection.
The reason why permanent GI protection is given is because all that is being protected is the name/logo and not the underlying technical knowledge/skills. So GIs are more like trade marks than patents.
Therefore producers in Spain, Australia, South Africa and the US can all use the ‘méthode Champenois’ technique to make high quality sparkling wine but they can’t call it Champagne.
If I can be of any further help, please do let me know.
Dr Dev S. Gangjee
Fellow and Tutor in Law, St. Hilda’s College Associate Professor in Intellectual Property, Faculty of Law, Oxford Director, Oxford Diploma in IP Law and Practice
To me, the only gain to knowledge was that Copyright Office has no branches in the country which surprised me.
No wonder then we have claims and counter-claims of plagiarism in writing and not enough people (qualified or otherwise) to make something out of it. Hence the solutions are often left to market forces with most times the big fish are able to arm-twist the small fish.
In short, all the big three Intellectual Property, Copyright and Trademarks work only for big companies. For SME’s it a lose-lose proposition as it can work only for niche products in niche markets only and that too only for a certain period of time.