Dirk Riehle's Industry and Research Publications

Intellectual property rights

Part 1
Open-source software

Chapter 2
Free and open-source software

  1. Why use open-source software?
  2. Intellectual property rights
  3. Open-source software licenses
  4. End-users and distributors
  5. The copyleft obligation

Chapter 3
The open source program office

Chapter 4
The software bill of materials

Chapter 5
License compliance

Chapter 6
Supply chain security

Property is, by definition, something that has an owner. The owner of some property determines what can be done with the property, even destroy it. A person’s property is protected by laws to ensure that society and economy work well and without disruption. Examples of physical property are the Eiffel tower owned by the city of Paris, or a cruise ship owned by a cruise company, or the mobile phone owned by you. 

Intellectual property is an intangible form of property: It exists only in our minds, it is virtual or digital, an idea or a creative expression. Examples of intellectual property are the William Gibson novel “Idoru”, the Microsoft brand logo, or the CRISPR/Cas patents on gene editing. Like physical property, intellectual property is protected by laws. These laws are expressed as the intellectual property rights that an owner is given. 

Software is a form of intellectual property. The owner can determine what others can do with it, for example, to use the software. Implied by ownership is that nobody else is allowed to use some property without the owner’s agreement. For this reason, property rights are also often called exclusion rights. Users of the software typically pay a so-called license fee to the owner for them to waive their exclusion rights to their property.

The three most important intellectual property rights are:

  1. Copyright. Copyright is the ownership right to a specific written expression (like a novel); it is not about the idea behind the expression. Therefore, a program written in Java can be rewritten in Python and it will have a different copyright. Each program potentially has a different owner.

Copyright is granted automatically, upon creation. There is no need to register a copyright. Copyright expires, but only after many decades (depending on the jurisdiction).

  1. Patent rights. A patent is a non-trivial man-made invention. A patent right is an ownership right to an invention to exploit it as one sees fit. The patent is about the idea, for example, a mechanism. The same mechanism, realized in two different ways, still falls under the same patent.

Patent rights need to be registered by application for the patent at a patent office. If granted, a patent rights hold for several decades (shorter than copyright though) and eventually expires as well.

  1. Trademark rights. A trademark is a specific mark representing some other property, and a trademark right is the ownership right of that trademark. Examples of marks are visual signs (logos) or sound marks (like the Nokia jingle), and even smellmarks, that is, uniquely identifiable smells.

Trademark rights are granted automatically through the creation of the mark and they are maintained by enforcing the mark’s ownership. Trademarks can be registered. They live as long as the owner enforces their ownership to the mark; once they stop fighting uses by others, they lose the trademark rights. 

There are other forms of intellectual property like trade secrets (for example, customer lists), but they are not needed here. The specifics vary greatly, typically by jurisdiction. Some countries don’t have copyright laws or have different rules for patent and trademark rights. Due to the global nature of the software business, the intellectual property rights granted by leading countries or unions like the U.S.A. or the European Union affect everyone, though, and need to be understood and managed.

Closed-source software like Adobe Photoshop is typically affected by all intellectual property rights. There will be the primary copyright owner (Adobe), but also many other copyright owners. Other copyright owners are the developers of the non-Adobe components that Photoshop has been built from, including open-source software. In all likelihood, there are many patents implemented in Photoshop, owned by Adobe and third parties. Finally, the Photoshop logo is a trademark owned by Adobe.

There are few non-trivial software applications today that do not have a large number of owners of the different intellectual properties embedded in the software. Each developer of such an application needs to understand how and why they are incorporating other parties’ intellectual property in their software. This is often a laborious task.



To be done.