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Power Couple: Technology and Intellectual Property (Episode 1)

by with No Comment IP Special Series

So which do you prefer: Samsung or Apple? Just kidding, that’s not what we are going to be discussing today, but just for fun, here’s my opinion: an apple a day, keeps malware away.


So here’s the gist: sometime last year, nine people and two companies were indicted for selling Samsung’s curved-edged OLED display technology. Apparently, when it comes to its display technology, Samsung is like a protective dad. You can’t really blame Samsung though; it took the company six years and $134 million to develop the stolen technology. Also, in January(definitely this year), an Apple employee was also charged with stealing Apple’s self-driving project secrets (who knew Apple was into cars?).


The Samsung and Apple stories show just how important trade secrets are as IP rights especially in the tech sector. A trade secret is ‘a formula, process, device or other business information that is kept confidential to maintain an advantage over competitors’. One thing makes trade secrets particularly distinctive; unlike other IP rights, they are the invisible component of a company’s intellectual property. And often, the value they add to a company is MASSIVE; take Coca-Cola’s secret formula for example. Essentially, trade secrets are literally secrets that bring about some economic advantage to the owners.

Trade secret protection has become a viable method of sustaining certain advantages in the technology sector. They are more advantageous than patents and the likes because:

  • Unlike patents they are not limited to a certain period of time.
  • They require no registration cost, although there might certain costs in obtaining the several legal measures that make something qualify as a trade secret.
  • They do not require disclosure to even government authorities, Coca-cola has refused to divulge its secret formula even after two court orders to do so (damn! And I thought Samsung was the protective dad).

I know what you are thinking: ‘you have found the ultimate intellectual property protection’…well, not exactly, because there some major caveats:

  • Trade secrets are not enforceable like patents, thus, if another company obtains the exact content of a trade secret (through legitimate means of course), they cannot be prevented from using it or even patenting it (yeah! Checkmate).
  • Trade secrets used in a particular technology such as Samsung’s favourite display tech, can be extracted by competitors through reverse engineering and analyzing it.
  • Trade secrets derive their protection from being secrets, so the moment they stop being secrets (become accessible to the public), they stop being protected.


These caveats however have not removed the relevance of trade secret in the technology industry and it is understandable because trade secrets give unexpected blows to competitors unlike patents that give competitors insight into the developments of a company. Patents also give adequate time to strategically mitigate its impact on the competition. Patenting a particular technology would allow competitors to study the technology, manufacture their own version of it that is ‘totally different’ and does not infringe on the patent at all but trade secrets simply keep them in dark.


Without doubt, taking the route of trade secret protection is a big risk and should be used sparingly and reasonably, it however seems to be a no brainer for cutting edge technologies that could give enough economic advantage to make it worth the risk.

Victor Fabarebo

Media Team

Copyright of Student Projects

by with 2 Comments BlogIP Special Series

How do you see your schoolwork? Do you see it as yours or do you think it belongs to your school? Your final year project for instance, can you actually claim ownership rights over your school project? Now, you most probably have never considered it or you think it belongs to you as an individual. A few persons may believe that the project belongs to the school. I mean, yes you did all the work, but most likely because it was a requirement for your graduation. Your school required this project from you and eventually, you submit all of your work back to the school. It’s nothing too different from your school contracting with an engineer to build a road for them, right? You may say, ‘Well, they pay the engineer for his work’ , but aren’t you also paid? At least, at the end of the day, if you manage to do your work well enough, you are rewarded, with a degree and a certificate.

 

One more digression to make, I mean one more! Your mind might have run into several soul bumps in a bid to know what copyright means.Copyright basically refers to the rights you have over your intellectual work be it literary, scientific and artistic which prevent other people from reproducing and selling your work without your consent. It comprises two aspects which are economic rights and moral rights. Economic rights are the rights that an author of a work has to be paid, whenever his work is used. On the other hand, moral rights are the rights that the author has to be mentioned and accorded the status of authorship whenever and where ever his work is used. These rights, of course, apply in cases of public use and not in cases of private or personal use.

 

Now, consider this again, do you own copyright over your school work? In a fast changing world filled with unprecedented advancements in the field of human endeavour, there is a pressing need to protect the intellectual work of persons responsible in one way or another, for such advancement. The need for this, is even more urgent in an academic environment. While the position on lecturers is one that may be resolved by the terms of employment between the university management and the lecturers of the institution, the position of students with regard to their project works is quite a dicey one.In Nigeria, the relevant law governing copyright is the Copyrights Act Cap 28 Laws of the Federation of Nigeria, 2004. Section 9 of the Act specifies the right to first ownership of copyright and clearly states that the copyright in an artistic work vests initially in the author. Section 39(1)(f) goes on to define an author in the case of literary works, as the creator of the work in question.The Act however, is silent on the position of students and schools with regard to the fruits of intellectual endeavor during their studentship. Thus, given the position between lecturers and the university, one may be tempted to conclude that in case of project works by students, the university would most definitely own copyright to such by works as students occupy a lower position on the ladder.

 

However, the above argument can be turned on its head once again by stating that the university only owns the copyright to works of lecturers because they work for the university. Since students neither work for the university nor receive any form of remuneration for their studentship, one may very well conclude that the students would own the copyright to their works. The problem with this approach is that it leaves room for more counter arguments, thus trapping one in an endless loop. A better approach to this issue would be to assume the ownership of the copyright indeed belongs to the student while coming under the defense of fair use provided for by the Act for the university.The doctrine of fair use is a provision that makes it possible to use literary works without permission from the owner. This comes with a caveat however. The works must be used for commentary, criticism, parody, research, news reporting and scholarly works (which covers the subject matter of this piece). Following this, we see that regardless of who owns the copyright to students’ projects, there exists a window through which the university can escape as well. This is indeed welcome as the academic environment is one that thrives on the discovery and sharing of knowledge.

 

Before we conclude though, there is a small point to be considered. While the defense of fair use may grant the university permission to use the work of the student, this does not in any way erode the moral right of the original author (the student in this case). Moral rights are the rights which allow the author to preserve the personal link between himself and his work. This means that the student, regardless of who owns the copyright or the application of the fair use doctrine, would have the right to claim authorship of his work, a right to have his name mentioned when the work is reproduced and the right to object to any distortion or modification of the work which would be prejudicial to honor and reputation. This helps to prevent the unlikely situation where an unscrupulous lecturer may pass off the work of student as his or where the student depends on the original content of his work to gain the necessary reputation needed to advance in the professional world.

 

In conclusion, the ownership of copyright of the project works and other productions by students is an issue causing ripples throughout the intellectual world. A sure way to settle this would be to create a clear cut IP policy regarding the intellectual property of students and ensure that it gets circulated to all faculties. It is our belief that this would be a step in the right direction and a favourable solution for both parties.

 

 
by with No Comment IP Special Series

Intellectual property is not just a course but it’s something we engage in everyday even as law students. Few months ago there were two entrepreneurs (law students) who had disagreements over the infringement of the other Intellectual property rights on Instagram and they resorted to funny remedy such as posting on whatsapp updates claiming the other is a scam.

How about your picture being used for meme or posted on IG without your consent? These are issues intellectual property address.

With the advent of innovation, creativity and technology;Intellectual property law is the new oil.

Black panther made more $1bn profit and just imagine they used your song in the trailer without paying my economic rights? There are increasing reasons why we must learn our rights under intellectual property law.

This will just be an introductory interaction as we will be seeing 4 subtopics
1. Definition and objectives of IP
2. Nature of rights
3. Features of IP
4. Headings Under IP

1. DEFINITION
Intellectual property rights protect creations of the human mind i.e ideas stemming from the human brain. Something original created by someone. The concept of intellectual property covers patents, trademarks, literary and artistic works, designs and models, trade names, neighboring rights, unfair competition, geographical indications, trade secrets, etc

Objectives of IP
1. To protect the ideas of inventors and creators so as to make it enticing for them to create more original ideas.
2. To improve man’s capacity for inventions and ideas as the advancement of the world will stem from creation of intelligent ideas.
3. To protect existing ideas so that resources can be channeled towards discovering and exploiting new ideas.

2. Nature of Rights
This is very simple and straightforward. They are 2 ; economic and moral rights.
Economic rights provide you the liberty of earning from your idea (invention, artistic work, literary work, industrial design).
The rights also permit you the liberty of denying others the usage of such ideas in various ways.
You can prevent people from adapting, copying, renting out, imitating, showing, lending out or broadcasting your work. Also, economic rights can be given or sold to a person or institution
Moral rights serve to protect your identity as the owner of the idea. Moral rights concern you in relation to the idea. Moral rights allow you to you react accordingly against your work being used in a derogatory manner. They also allow you to be identified as the owner of the invention/artistic work/literary work etc.

In other words an economic right can be transferred when there’s payment of a certain amount. However, moral rights cannot be transferred, therefore if you are infringing on the right of another person you pay the person if it’s an economic but if it’s a moral right you give credit to the person. As an illustration, the phrase ‘Joromi’ was coined by Victor Uwaifo and used in his song titled ‘Joromi’.
Victor Uwaifo argued that Simi and Jaywon shouldn’t have infringed on his rights over the song joromi without his consent.
Had it been Simi paid Victor Uwaifo, the right would have been economic right. However if she had mentioned him in her song ‘joromi’ it would have been a moral right.

Let’s consider a question.
So would the coining of the phrase ‘Joromi’ ordinarily entitle Victor to a copyright? And can he enjoy an economic right from it?
The title of the song ‘Joromi’ was coined, that is, it is not a normal Yoruba word. He owns the Intellectual property right over the title. As she didn’t acknowledge Victor as the creator of the word, he could sue as his IP rights were being infringed. However in this case, Uwaifo overlooked it and didn’t enforce his right. So there will be no legal compulsion on Simi to give him credit.

A difference between moral rights and economic rights is that the former cannot be transferred. They are solely invested in the creator.

3. Features of IP
Intellectual properties have various features.
1. Creator’s Exclusive Right : Self-explanatory. The creator is given rights that excludes every other person. Others cannot use his right. The right belongs to the owner until he transfers it to another person.
2. Transfer : An intellectual property, like real property, can be sold or freely given to another person. The right of the creator may be wholly transferred or a period of time may be agreed upon by both parties during which the transferee will use the intellectual property till the expiration of such period of time

NOTE: A quick question to consider. In a situation of co-founding an idea, but each with disproportionate contribution, Is the right to be shared 50/50 or is it particular to each party’s contribution? If yes, how is the proportion determined?
In answering, one should note that it is no more a person. It is a group of persons. As for groups of person, institutions can get their intellectual property protected. Access to their collective right is determined by the group or institution. There’s what they call ‘split sheet. This would be explained better during copyright lessons. Now let’s continue on the features.
3. Duration of Owner’s Right : Various intellectual properties get their owners various periods of time for the possession of such rights. For instance patents usually last for 20 years from time of issuance, while trade secrets can last indéfinitely.
4. Usage across country borders : Intellectual property rights can be invoked over long distances. A patent internationally registered in Nigeria can be enforced in UK. This is because of the presence of various international treaties on intellectual property.

4. HEADINGS UNDER IP
Here, we shall see the various intellectual property rights such as copyright, patent, trademark, geographic indication of origin, industrial design, trade secrets, database protection laws, publicity rights laws, laws for the protection of plant varieties, laws for the protection of semi-conductor chips etc.

A. Patents are rights that protect an invention. This invention is usually a technical solution to a technical problem or a new way of doing something or a new product. A patent protects the idea and not necessarily the expression of that idea e.g patent will protect the diagram and schematics of a vehicle even before making the vehicle.
The patent grants the owner the exclusive right to use it any legal way without undue usage by any other party

B. Copyright
It is an intellectual property which does not essentially grant an exclusive right over an idea but the expressions of ideas which makes it different from a patent. A patent is related with invention – technical solution to technical problems while copyright is a field which has gone with artistic, literary creativity- creativity in scientific works, audio-visual works, musical works, software and others. It protects not ideas but expressions of ideas as opposed to patent.

C. Industrial Design
A design is a kind of intellectual property which gives an exclusive right to a person who has created a new appearance of a product. It deals with appearance: how they look like. Appearance is important because consumers are interested in the outer appearance of a product. It is concerned with appearance, not quality.

D. Trademark Right
It gives protection to graphic representation(words, logos or even sounds and smells) which are distinctive in nature and serve as source identification. A trademark is to be found on the goods associated with them. It enables the customer to identify the goods from others.
They exist forever so long as the good with which they are associated continue to be sold. But they require renewal.

E. Geographic Indications
They are the indications on products about the geographic origin of the goods. They indicate the general source. The indication usually relates to the quality or reputation or other characteristics of the good. For example, those wines with their geographical indications will already make a wine taster know its taste and quality.

In line with the headings, I’ve got some questions.
Hint:As a general rule, a product may have more than one type of intellectual property.

1.The tvs instructions or manual are protected by____
2.The Samsung TV design is protected by____.
3.The part and processes of a Samsung tv are protected by____.
4 .What trademark protects every Samsung product?

1. The tv instructions or manual are protected by copyright just like your textbooks.
2. The design of the tv is protected by industrial design.
3. The part and processes are protected by patent.
4. The trademark protects the Samsung TV. Examples of trademark includes logo, slogans, packaging etc. It distinguishes the goods from that of its competitors. If you notice the a in Samsung is not like the normal A, that’s the distinction.

NOTE: Design and Patent are always placed side by side because they are similar. That is why we have the Patent and Design Act. In order to avoid confusion, let’s explain using the iphone as an example. The shape of an iphone is the design while the innovations which makes it distinct from other phones like android, windows etc can be protected by Patent.