Technology and Intellectual Property Rights in EUAAA IPRIGHT5
Copyright, database rights, confidentiality, and trade secrets are the most important IP rights in connection to technology (mostly software and data). Software and business processes that modify and process data are likewise covered by patents and rights to inventions, though not in the same way as data itself. Software, data, and other technological products are all eligible for trademark protection.
Copyright does exactly what it says on the tin: it prevents the copying of information’s form or expression but not the underlying data. It covers software, databases, text (as literary works), music, images, films, videos, and broadcasts, among other things. In the EU, it occurs automatically as a result of the legislation (so does not require to be registered). It is a formal remedy that prohibits unlawful copying (as well as the unauthorised performance of other copyright-protected actions, which are best viewed as a “bundle of rights” in this regard).
A successful copyright infringement claim must demonstrate the following:
- that copyright subsists in the work – generally, that it is unique and adequate to be protected by copyright;
- that the claimant owned or could otherwise sue on that copyright;
- that the work was within copyright (life plus seventy years in the case of software, databases and other literary works); and
- that the copyright had been infringed –For example, in situations where a license or copyright-permitted act (fair dealing) exception did not apply, a qualitatively significant part of the work had been duplicated without permission..
A database right arises when the creator has made a “substantial investment” in the database’s “obtaining, verifying, or presentation.” The individual who takes the initiative and accepts the risk of obtaining, verifying, or presenting the database’s contents is usually the initial owner of database rights. The right lasts for fifteen years from the time it was created, and it is effectively updated anytime ‘any significant change’ is made. It is infringed by the ‘one-time extraction and/or re-utilization’ of a considerable portion of the database contents or the repeated and systematically extraction and/or re-utilization’ of insubstantial components.
Both copyright and database rights protect the expression and form of information rather than the content. This means that, counterintuitively, equitable laws protecting information confidentiality (‘equity will act to enforce a confidence’) can give the finest form of IPR protection since they may protect the substance of data that is not widely known.
The EU Trade Secrets Directive aligns EU law with WTO TRIPS Agreement Article 39 (which grants IPR protection to trade secrets as undisclosed information) and the US Uniform Trade Secrets Act. A trade secret has three aspects, according to Article 2(1)(a) of the Directive:
- secrecy in the sense that it is not as a body or in the precise configuration and assembly of its components generally known among those skilled in that subject;
- commercial value because it is secret; and
- reasonable steps must have been taken to keep it secret.