This lecture discusses several legal issues relating to intellectual property and software, including copyright issues, intellectual property rights, and acts protecting consumers. It covers topics such as software licenses, patents, trademarks, liability for faulty software, and computer misuse. Intellectual property for software can be protected through patents, copyrights, trademarks, and trade secrets. Copyright issues and consumer protection acts govern transactions of software.

1. Legal Issues – Intellectual
Property Rights

2. At the end of this session you
should be able to:
• Describe software legal issues including:
• Confidentiality and Privacy
• copyright issues
• Intellectual Property rights
• Copyright issues
• And Acts protecting the consumer such as
the Sale and Supply of Goods Act
• Describe computer misuse

3. Intellectual Property and
Supply of software
• Licenses are the traditional way that
copyright owners control the :
• Use
• Distribution
• Dissemination and
• Of the copyrighted software

4. Comparison of a goods transaction
eg DVDs and software
• The Intellectual Property protection for these
transactions falls under the 1979 Sale of
Goods Act
• It is unusual for software to be sold directly to
the end user
• Generally the preferred method is to enter
into a contractual license agreement

5. Intellectual Property
• What protection does a software developer
have against copying of his or her software?
• Intellectual property is considered the result
of intellectual endeavour
• These can be protected by:
• Patents
• Trademarks
• Design rights

6. Patents
• Protects product inventions or process
inventions
• Used to protect inventions
• Generally, in order for an invention to be
patented, patent laws require that it must:
–be new, involve an inventive step (non-
obvious), be industrially applicable
• Can patent process or product
• Patent is issued by Gvt authority, gives
patentee (owner of patent) exclusive rights,
has a territory & is for specified term of years

7. Patents
• Patent protection means anyone who wishes to exploit
the invention must obtain the authorization of the
patentee, otherwise prosecution (patent given on first
to file basis)
• Patented invention may be exploited without
patentee’s authority, e.g. in the public interest by or on
behalf of the Gvt or after expiry of term
• To be patentable an invention must:
– Be novel
– Contain an inventive step
– Have an industrial application and
– Not be in area not covered by patent law (scientific
theories, artistic works and algorithms)

8. Trademarks, Trade Secrets
and Trade Names
• Examples, HP, Coca-Cola, IBM, Mpesa
• Trademarks are not restricted to names, eg a distinctive
form of packaging may qualify
• Problem with the registration of Internet domain names –
there is no global system of trademark registration
• Speculators buy up names before well-known companies
and expect to make a profit by selling the domain name.
• Harrods (a famous London store) went to court and
successfully recovered the name Harrods.com

9. • Trademark is any sign or combination of signs, capable of
distinguishing the goods and services of one undertaking
from those of other undertakings
• Tradename is the name or designation which identifies an
enterprise
• Most laws:
– require trademarks & trade names be registered with a
Gvt authority
– protect against use of a trademark or a sign similar to it,
at least in connection with the same or similar goods for
which trademark was registered
– protect against use of trade name by another enterprise,
if likely to mislead the public

10. • Trade secrets (ideas & methods of implementation)
protected via the law of confidentiality. Includes both
HW & SW
• Protection created where there is a direct contractual
obligation e.g. confidentiality obligations in
employment contracts are enforceable in law
• If obligations not defined, may be necessary to
determine degree of good faith in any disclosure, e.g.
use of knowledge acquired in previous employment in
a competitor firm once employment ceases
• With increasing outsourcing, using contracts to define
specific confidentiality obligations is advised.

11. Designs
• Designs that are attractive yet functional by
being registered can be protected from
copying
• Criteria: must be novel and have aesthetic
appeal
• E.g. novel and distinctive designs for a
mouse or keyboard could probably be
registered.

12. Copyright and Software
Protection
• The purpose of copyright is to ensure that the
author of a work benefits from his or her efforts
• Protects copying the expression of an idea
(protects software). Most acts recognize SW as
“literary” work. Thus prohibit copying, issuing of
copies, performing/showing/playing the work in
public, adapting, etc.
• Most acts permit certain actions (“fair dealing”),
e.g. use for research, private study, criticism,
review, news reporting, taking back-ups, etc.

13. • SW license issued to permit actions
forbidden by copyright (see example of SW
license agreement)
• Damages for contravening copyright usually
a notional cost of license fee, e.g. 10%
royalty
• To be protected by copyright it must be:
• Original
• Recorded in writing or otherwise
– a work held on magnetic media such as
computer disks or memory is regarded as
recorded

14. Ownership of Copyright
• The person who creates a work is referred to as its
author
• E.g program’s author, photograph’s author
• E.g. I paint oil paintings but the rules of our Art Club
state that to exhibit any painting the work must be
original and not from an image where the artist
does not have copyright.
• So no copying of famous paintings, photographs!
Copyright websites and software
http://www.himels-computer-law.com/copr.htm

15. Copyright
• Weaknesses/challenges:
– Does not protect underlying idea (protects its expression:
in source code and documentation).
– What is the legality of reverse engineering? What is the
position of “look and feel” of software?
– What is the position of object code? Not intelligible to
human beings, it therefore falls outside the definition of
"copy" in a Copyright Act
• Other SW protection measures (esp. security):
– Hardware locks
– Randomizing blocks in source code to disguise its logic
– Compiling SW to ensure source code not available
– Low prices to make illegal copies less attractive

16. • SW license agreement may allow SW to be:
– used or copied for use on or with the primary computer
for which it was acquired, plus a backup computer if the
primary is inoperative;
– reproduced for safekeeping or backup purposes;
– customized, adapted, or combined with other computer
software, provided that derivative software incorporating
any of the delivered, restricted computer software shall
be subject to same restrictions set forth herein;
– disclosed to and reproduced for use by support service
suppliers or their subcontractors, subject to the same
restrictions set forth in the Contract;
– used or copied for use on or transferred to a replacement
computer; and
– subject to audit by the Supplier to verify compliance with
the License Agreements

17. SW license agreement may disallow SW to:
– assign or otherwise transfer voluntarily without
the Supplier’s prior written consent, except as
otherwise provided for in an assignment clause
– transfer, sell, lease, rent, charge or otherwise
deal in or encumber the Source Code nor use
the same on behalf of or the benefit of any other
party, unless such is within the overall scope of
the project
– expand access to the Source Code to those of
its employees, agents, contractors, or
subcontractors who neither have a need to know
nor are directly engaged in the maintenance
and/or enhancement of the programs

18. • Software development investment not
adequately protected in many countries (cf
hardware developments are usually
adequately covered by patent law)
• However, innovation & technology transfer
can be stifled by draconian protection
• Trade secrets (ways of working, plans and
interactions), patents and copyright
legislation attempt to balance these 2
tensions

19. Software Piracy
No legal distinction between breach of copyright of
mass-market SW product & bespoke SW – but
concerns are different
• Usually refers to clearly detectable copying of
commercially available SW
• What are the issues?
– Huge investment cost. SW houses will therefore
attempt to protect their investment e.g. by having pressure
groups (funded by SW developers) dedicated to reduce
the extent of piracy
– High costs, especially for poor countries
– Detection of breach. How do you detect illegal copies?
SW external raids and audits by lobby groups?

20. Rights of user. What rights should the legitimate SW
user have? Should they be able to copy e.g. for
backups; to “decompile” or to adapt to meet certain
requirements that are not commercial in nature; etc.
How much piracy to allow! Piracy represents locking
in of customers – it might therefore have long-term
benefits
• How can we address the problem of piracy?
– Simplify licensing rules
– Make site licenses cheaper and easier to obtain
– Use free/open source software (F/OSS)
– Draw up a relevant legislation
– Make SW users aware of the law and legal
implications of piracy

21. Liability for faulty software
• Liability for faulty software can derive from a
contract or from the law of negligence
• When a death or injury results from an error
in the software other areas of the law may be
relevant (such as consumer protection or
Health and Safety).

22. Contractual sources of liability
• Whether the software is sold as goods or as
a service determines which Act applies
• The Sale and Supply of Goods Act (1994)
– Goods must be fit for purpose and of satisfactory
quality
• The Supply of Goods Act (1982)
– specifies that services must be carried out with
reasonable skill and care.

23. Negligence
• The law of negligence gives people a
mechanism for obtaining redress from
someone whose carelessness has caused
death or injury
• Criteria:
• A duty of care must exist –an individual can
reasonably foresee that his or her acts may
injure someone.

24. Other Legal Issues
• Issues over copyright ownership rights in systems
development:
– SW development by an employee in course of the
employment? – Employer as per Copyright Act, 2001,
subject to any agreement between the parties
– SW developed by consultant/contractor in course of
consultancy assignment? - Employer as per Copyright Act,
2001, subject to any agreement between the parties law
– SW developed using rapid prototyping or CASE tools?
• How do you protect disclosure for an employee who
resigns/leaves in middle of a major SW development project?
• How do we deal with new crimes (cyber crime) associated
with new ICT innovations? e.g. altering a program to perform
a fraudulent act, time bombs in programs, etc.

25. • How do we deal with issues of jurisdiction?
• How do you insure against ICT crimes?
development
ICT can be used to prevent, detect and
prosecute crimes e.g.
• audit trails, cashless systems reduces cash
crimes (& creates other types of crimes),
knowledge-based systems that can warn of
potential criminals, systems that support crime
protection, detection, & prosecution, etc.

26. Computer misuse

27. Copyright in Kenya?
• SW treated as “literary works” under the Copyright
Act, 2001
• Confers copyright to employer or customer subject
to any agreement between the parties
• Term of CR is 50 years after the end of the year in
which the author dies
• Allows copies to correct errors, make back-up,
testing for suitability, or other purposes not
prohibited under SW license agreement
• Limited capacity (AG’s chambers and judiciary) for
SW copyright
• Require separate legislation for SW?

28. Patenting in Kenya?
• Used UK patent law until 1989, now under Industrial
Property Act, 2001 (KIPI). Patent right granted to:
– person(s) with earliest application filing date
– employer or person who commissioned the work for
invention made in in execution of a commission or of
employment contract, in the absence of contractual
provisions to the contrary
– employee or person commissioned to do the work for
invention made without any relation to an employment or
service contract
• Rights extended only to acts done for industrial or
commercial purposes and not acts for scientific research
• Patent expires after 20 yrs from date of filing
• Patent may be exploited in public interest…

29. Confidentiality and Privacy
• There is conflicting tension
between privacy and accessibility of info
– Privacy is an individual’s right to determine for
themselves what about them is communicated to
others
– Confidentiality is an organization’s right to
determine what will be communicated about
commercially held info. e.g. sales data
• Given conflict, to what extent are
individual’s/society’s interests best served by
allowing limits to data/info access?

30. • Gvts have different legal instruments relating to different
aspects of privacy e.g. defamation, copyright, trespass, etc.
• Individual privacy space is defended by law in many
countries and is a compromise between the needs of an
individual and the needs of society for information.
• The Constitution has a specific section on the privacy of the
individual, which includes the right not to have:
• information relating to their family or private affairs
unnecessarily required or revealed and
• the privacy of their communications infringed
• However, most Gvts have an interest in invading privacy
than in protecting it:“It cannot be emphasized too strongly
that the incentives for the government and the bureaucracy
are in the direction of invading, or at least ignoring or
neglecting, privacy interests rather than protecting them.
Most measures that are perceived as “necessary” to cope
with a societal problem involve surveillance through data

31. • Concept of privacy is context specific:
– Variations wrt to what is “private” information exist
between one individual and another, between different
sections of society & between countries
– THEN important concern is what the data is used for
rather than the data itself
• Whatever the privacy debate in a country or
society, privacy protection is important & is likely to
become more so as society becomes more
informatized
• 2 important privacy issues:
– Fair use. The requirement to seek an individual’s
permission before passing the data on to others e.g. to
be used in support of an organization’s business mission

32. – Gate keeping. The restricted access to services,
privileges, benefits or opportunities on the basis of
certain data values. Some are inevitable and acceptable,
e.g. point scoring system for credit provision. However,
the same system can be used to keep out “trouble
makers”! THEN the issue becomes: whose definition of
trouble maker
• Many Gvts have responded to the challenge on
privacy with a myriad of legislative provisions, e.g.
– Data Protection Act 1998, 1998 Chapter 29 UK Laws.
– Directive 95/46/EC of the EU on the protection of
individuals with regard to the processing of personal data
and on the free movement of such data.

33. What is computer misuse?
Misuse of computers and communications systems
comes in several forms:
1. Hacking
2. Data misuse and unauthorised transfer or
copying
3. Copying and distributing software, music and
film
4. Email and chat room abuses
5. Pornography
6. Identity and financial abuses
7. Viruses

34. Summary
• This lecture considered a brief overview of
• Software legal issues including:
• copyright issues
• Intellectual Property rights
• Copyright issues and Acts protecting the
consumer such as the Sale and Supply of
Goods Act