Technology Management

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Legal, Ethical and Social Considerations of Creative Commons and the Public Domain

[Table of contents]

Related Laws and Regulations

Before we get started, we have to realize that not all laws and regulations apply to various locations around the world. Consider this:

International Patents

As noted by the World Intellectual Property Organization: At present, no world patents or international patents exist.

In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.

Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT.

Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection. (2011)

Participants in International Patent Treaties: http://en.wikipedia.org/wiki/List_of_parties_to_international_patent_treaties

Directory of national and regional intellectual property offices: http://www.wipo.int/directory/en/urls.jsp

See also http://oedb.org/library/starting-a-career/the_ultimate_guide_to_internet_law

International Copyright

Not all countries participate in international copyright. This means that in the global world the rules that apply in one location may not apply in others.  See http://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_agreements or http://www.wipo.int/treaties/en/ for more information.

That said, lets move on to laws and regulations that commonly do play a part, in particular in the United States.

Copyright and Intellectual Property

Generally speaking, we have well established rules and norms for individual, joint, institutional and vendor IP ownership. We also have reasonably well established academic norms for attribution. However, the devil is in the details (Cate 2009). We can now distribute rights almost any way we want to distribute them.  Copyright and intellectual property policy and enforcement includes a number of areas such as patents, trademarks, trade secrets, right of publicity, and copyrights.

As the United States Copyright Office states:

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts.

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.” (2012).  

See also Berne Convention for the Protection of Literary and Artistic Works

Fair Use

Fair use allows for limited use of copyrighted materials without permissions from rights holders. An example may be a critical review.

As noted by the United States Copyright Office, fair use is defined as follows:
The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted wor

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Freedom of Speech/Expression

Freedom of speech (expression) in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions as well as and state and federal laws.

First Amendment to the U.S. Constitution (Religion and Expression)

The First Amendment to the United States Constitution is part of the Bill of Rights and was adopted in 1791.  It provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It should be noted that court decisions have expanded this concept to include not just verbal communication but also non-verbal expressions such as wearing a symbol, dance movements, or silent vigils.

Universal Declaration of Human Rights

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.  This declaration proclaims, “as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction” (United Nations, 2011).

The right to freedom of speech is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR).  It states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations, 2011).

Global Network Initiative summarizes laws relating to the freedom of expression well when it states:
Freedom of Expression: Freedom of expression is defined using Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR):

UDHR: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
ICCPR: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

The Global Network Initiative further notes:

“Freedom of opinion and expression is a human right and guarantor of human dignity. The right to freedom of opinion and expression includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Freedom of opinion and expression supports an informed citizenry and is vital to ensuring public and private sector accountability. Broad public access to information and the freedom to create and communicate ideas are critical to the advancement of knowledge, economic opportunity and human potential. The right to freedom of expression should not be restricted by governments, except in narrowly defined circumstances based on internationally recognized laws or standards.  These restrictions should be consistent with international human rights laws and standards, the rule of law and be necessary and proportionate for the relevant purpose. Participating companies will respect and protect the freedom of expression of their users by seeking to avoid or minimize the impact of government restrictions on freedom of expression, including restrictions on the information available to users and the opportunities for users to create and communicate ideas and information, regardless of frontiers or media of communication” (2009). While freedom of speech regulation encourages creative and free expressions, these expressions must be done within the context of copyright and intellectual property.

Right of Publicity

The right of publicity is a state-set rule regarding the right to control the commercial use of one’s identity which generally includes name, image and likeness; however, it varies from state to state.   Right of publicity is part of the intellectual property family.  Currently, Utah is one of nineteen states that recognize the right of publicity via statutes (Right of Publicity,, 2009).  In Utah it specifically related to newspapers and radio broadcasting. To learn more, see Utah Code, 1953, Title 45. Newspapers and Radio Broadcasting Chapter 3. Abuse of Personal Identity (Right of Publicity 2009; Roesler, 2011).

Anti-Circumvention

Anti-circumvention laws prohibit the circumvention of technological barriers for using digital resources in certain ways which the rights holders do not wish to allow.

WIPO Copyright Treating and the Digital Millennium Copyright Act

The World Intellectual Property Organization Copyright Treaty (WIPO) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996 and can be found at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html. The United States entered into the treaty in 2002. The WIPO Copyright Treaty is implemented in United States law by the Digital Millennium Copyright Act or DMCA (WIPO, 1996).

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. It was passed on October 12, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users. It can be found at http://www.copyright.gov/legislation/pl105-304.pdf  (United States Copyright Office, 1998; Patry, 2000).

Assuming we have all necessary copyright and intellectual property clearances, our freedom of expression may also be impacted by rules relating to privacy and data protection.

Privacy

Privacy is something we all seem to want in some cases and all seem to be willing to give up in others. “Privacy is an important, but illusive concept in law. The right to privacy is acknowledged in several broad-based international agreements. Article 12 of the Universal Declaration of Human Rights and Article 17 of the United Nations International Covenant on Civil and Political Rights both state that, ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’” (Stratford & Stratford 1998).

Stratford and Stratford note, “The term “privacy” does not appear in the U.S. Constitution or the Bill of Rights. However, the U.S. Supreme Court has ruled in favor of various privacy interests-deriving the right to privacy from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution” (1998).

As stated by the Global Network Initiative:

Privacy: Privacy is defined using Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR):

UDHR: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

ICCPR: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

The Global Network Initiative notes, ““Privacy is a human right and guarantor of human dignity. Privacy is important to maintaining personal security, protecting identity and promoting freedom of expression in the digital age. Everyone should be free from illegal or arbitrary interference with the right to privacy and should have the right to the protection of the law against such interference or attacks.The right to privacy should not be restricted by governments, except in narrowly defined circumstances based on internationally recognized laws and standards. These restrictions should be consistent with international human rights laws and standards, the rule of law and be necessary and proportionate for the relevant purpose” (2009).

“The Privacy Act (PL 93-579) is a companion to and extension of the Freedom of Information Act (FOIA) of 1966. FOIA was primarily intended to provide access to government information. It did exempt the disclosure of personnel and medical files that would constitute ‘a clearly unwarranted invasion of personal privacy’. This provision was initially used to deny access to people requesting their own records. So the Privacy Act was also adopted both to protect personal information in federal databases and to provide individuals with certain rights over information contained in those databases. The act has been characterized as ‘the centerpiece of U.S. privacy law affecting government record-keeping.’ The act was developed explicitly to address the problems posed by electronic technologies and personal records systems and covers the vast majority of personal records systems maintained by the federal government. The act set forth some basic principles of “fair information practice,” and provided individuals with the right of access to information about themselves and the right to challenge the contents of records. It requires that personal information may only be disclosed with the individual’s consent or for purposes announced in advance. The act also requires federal agencies to publish an annual list of systems maintained by the agency that contain personal information” (Stratford & Stratford, 1998).

Data Protection

The Federal Trade Commission is educating consumers and businesses about the importance of personal information privacy, including the security of personal information. Under the FTC Act, the Commission guards against unfairness and deception by enforcing companies' privacy promises about how they collect, use and secure consumers' personal information. Under the Gramm-Leach-Bliley Act as can be found at http://www.ftc.gov/privacy/glbact/glbsub1.htm,  the Commission has implemented rules concerning financial privacy notices and the administrative, technical and physical safeguarding of personal information, and it aggressively enforces against pretexting, which is the practice of getting your personal information under false pretenses (Federal Trade Commission, 2006; Electronic Privacy Information Center, 2012).
 
It should be noted that the United States does not treat personal data privacy in the same manner as some other countries.  “Where the U.S. approach has been to provide specific and narrowly applicable legislation, in Europe there are unified supra-national policies for the region. Most countries have implemented these policies with omnibus legislation. The European legislation outlines a set of rights and principle for the treatment of personal data, without regard to whether the data is held in the public or private sector. In the United States, the legal tradition is much more concerned with regulating data collected by the federal government" (Stratford & Stratford 1998).

Liability

There are at least three types of liability issues that should be taken into account in relation to an institution’s use of all types of technologies: