Sample Paper on Should Copyright and Patents be a Global Standard?

Should Copyright and Patents be a Global Standard?

Introduction

Software is a unique technology, in that it comprises rights that are protectable under copyright law, patent law and trade secret law. The multiple protections often come up because it can be both a work of authorship as well as a business process. The software industry is currently facing an array of challenges that are related to cases of hacking of programs and direct imitation of products. These have resulted in the realization of great losses by the industries concerned with software productions (Adams, 2012). In the terms, the industry has come into existence quickly. The effects have been spread to various effects with low quality of productions as a result of compromised qualities. Software is no longer concentrated in the hulking mainframe computer taken care of by technicians and specialists who wear white coats, nor confined to the desktop computer that has come into the world and replaced several things such as the typewriter. It is very hard to ignore the capability of the software when it comes to patent and copyright protection yet there have been controversies concerning the usage of a number of software in a number of industries. These controversies majorly resonate around the legal rights of individuals and companies to use these specific technologies in their operations. These have resulted into formulation of legal procedures and policies that govern the usage of a number of software. Some of these laws and policies have been made universal in order to encourage uniformity in the management of the software industry. However, some specific sectors and countries have also formulated peculiar laws that govern the software industry.  Thus, the aim of the software industry globally is to come up with copyrights and patents that would help protect businesses and enhance their success.

Patents and Copyrights

Patent rights are one of the key strategies that have been put in place to curb cases of malpractice in the software industry. A patent refers is a legal consideration that gives an individual or a firm the exclusive ownership rights of a certain brand of productions (Stobbs, 2002). Cases of copying inventions of other people are effectively eliminated through the adoption of the patent rights. In the event that situations of imitations are manifested in the case of patented software, legal procedures are outlined. In most of the countries, an action that is in contradiction with the patent laws is considered as gross and warrants legal actions. In order to grant patents to investors, governments should strive to disclose the new inventions in details to the public. This will prevent other persons or firms from developing products, services and process that are similar to those already developed. Both copyrights and patent protection have been extensively employed in software related intellectual property and some of the current controversies over the patent protection have come up in debates globally since entrepreneurship has become a backbone of the world’s economy hence should not be interfered with (Nelson, 1982).

The introduction of the patents and copyrights has achieved great advancements in realization of efficiency in various companies. Cases of imitation of systems and production of systems that do not meet the market standards have been avoided. In addition, this has allowed various governments to easily implement the required standards for operations in the software industry. Through the regulation of the entry of companies in the industry, the introduction of patent protection and copyrights has been an effective achievement. However, the adoption of patents usage and policy formulation has often raised several controversial reactions from many sectors and countries. Some propositions also argue that the introduction of these regulations controlling software managements have resulted in more negative effects over the years (Nelson, 1982).

Benefits of Patents

A number of positive contributions have been realized with the introduction of software patents in most industries. The firm with the exclusive production rights enjoys most of these positive contributions. In addition, in certain cases, individual countries majorly in the given industries have achieved great strides because of acquisition of patent rights. Initially, the acquiring of patent rights will have resulted into firms enjoying the monopoly power of production (Masterson & Spring Meeting 2011). This has barred firms that could indulge in the imitation of the processes or the production activities owing to the adverse legal consequences defined in the patent procedures. These firms having the monopoly power experience a free market platform of operation due to lack of competition from other firms. Patenting also has constant streams of income that the company receives in the period of the validity of the patent. This has seen most firms having patent rights to indulge into large-scale production due to availability of operating firms. This has led to the economies of scale that are evident in most activities of firms. In the event of producing nations having the patent rights to produce given software, number positive impacts have witnessed. Initially, these exclusive production rights have resulted into inadequacy of the specific software productions as firms are prevented from imitating the line of production or the actual products. This increases the demand for the given software products by various firms and countries. Due to this massive importation of these, software productions are realized by nations that lacks the particular software products. Huge purchases results into favorable balance of payments within the nation that consequently will promote rapid economic growth in the software industry within the particular nation (Holland, 2007).

In the event of conflicts resulting from software productions, patent rights offer a logical framework that should be put in place to ensure that amicable solutions are arrived at. In most cases, heavy penalties will be levied on individuals and firms attempting to imitate an already patented software production. These designed legal procedures will therefore effectively eliminate the possibility of piracy in the software industry. As a result, quality software production will be effected since the few firms with patent rights will adhere to the global software standards required.

The other positive impact of patenting is that it promotes new discoveries. Patents have in one way or another affected the incentive to introduce innovation in the world of business and thus, patents are likely to lead to the increase of the flow of innovations. The increase in innovations is without doubt desirable in any type of environment, given that otherwise the market system may provide a little knowledge. Nevertheless, when a patent gives exclusive rights on the exploitation of a unique economic good that still faces no rivalry in consumption, a patent may lead to the creation of a monopoly situation that will affect the efficiency of any given new technology.

Patents can also be of benefit to entrepreneurs as they can help in the transfer of knowledge from one person to another. In a number of countries such as in the USA and most of the European countries, patents disclosure of patents is often done after approximately 18 months after the filing date. At times, the disclosure can be done just before duration of 18 months. If patents are absent, in such a scenario, inventors can rely on trade secrets to enhance the protection of their new discoveries. With the provision of incentives for disclosure, patents contribute to a desirable transfer of scientific and technical information from individual to individual, thereby allowing other inventors to avoid copying or rather infringing other discoveries that already exist and making it easier to develop further innovations. It is useful to note that the disclosure argument offers an economic role for patents, even for inventions that have already taken place, and as such, it is quite distinct from the incentive role of patents due to the increased appropriateness of outputs.

Patents are also beneficial to entrepreneurs and traders because they can help avoid wasteful innovation efforts. Discoveries from basic research are that it makes possible further innovations and discoveries. Discoveries from basic research are often this sort, at times opening up entire new fields of research. In fact, patenting is believed to have useful social effects. This rationale is articulated in the so-called prospect theory of patents that has been talked of by several researchers. The theory is derived from the basis that early property rights on key inventions have the ability of allowing a rather orderly follow-up of innovations and a significant reduction of wasteful innovations. For instance, an analogy can be made to the practice of selling commodities where not even a single delivery has yet been made. This is often done to help do away with the possibility of a wasteful mining prospect. Whereas in such scenario patents clearly have positive efficiency effects, it is also viewed that to see that  patents can adversely affect further research, especially when the original discovery has applicability in a number of uses. If the original inventor does not have a comparative research advantage or interest in pursuing some research directions, and licensing of the patented innovation to third parties has a number of problems, patenting can have adverse effects on the flow of further innovations.

In the world of entrepreneurship, technology and commercialization form an integral part and are treasured by entrepreneurs and business people. Therefore, patenting has been enhanced to help in technology transfer and commercialization. Whereas the challenges experienced during licensing may cause a reduction of the desirability of exceedingly broad property rights, patent can actually play a significant role in licensing especially in the transfer of knowledge from one individual to another. Some researchers have stressed on the informative nature of new knowledge and noted a strange property in the determination of demand for information. To be specific, in order to put a value on information a possible trader or purchaser needs to have relevant information, but at that point, if the seller does not have property rights to the information, the possible buyer has no more incentive to pay for it. Patents, thus, can play an integral role in reducing costs that are involved in licensing innovation and in the transfer of technology.

Negative impacts of patents

Despite the positive impacts resulting from software patents and copyrights, there are a  number of arguments that illustrate that to some extent, the developments have caused inefficiency in various ways. The arguments concerning the negative effects of patents in the software industry has greatly compromised the adoption of these developments by many countries and economic sectors. Initially, in order to acquire the exclusive production rights, large sums of funds are required in order to acquire these patent rights. In most cases, individuals and developing companies are barred from accessing these rights due to the huge funds required. This has caused isolation of these companies from the industrial policies. Moreover, due to this financial barrier, ineffectiveness has continuously been witnessed in these developing firms as they are eliminated from competitive advantage in the market. In the event that small firms strive to acquire these software patents, financial distress will be faced by the firms that would result into the termination of the operations of the firm. This has often resulted into demands from various sectors that the patent costs be cut in order to embrace individuals and small firms.

The offer of these software patent rights results into the monopoly power of the single firm engaging in the production of peculiar software (Netanel, 2008). Monopoly power can be described as a scenario where an individual, institution or company has total control in a particular market of production. In a situation where only an individual firm has the exclusive rights to indulge into a given production activity, the resulting prices of the products are in most cases very high. This is because the firms are allowed to set their prices without any legal considerations. In adverse cases, the product will be expensive to acquire hence most of the potential users will be barred from the usage of the product. In the case of software patents, individuals will not be able to acquire the products owing to the high prices charged. Monopoly power will also lead to challenges when dealing with the software (Netanel, 2008).  Due to the exclusive rights of productions, firms will indulge in low productions due to lack of competition in the same line of production. The individuals who use the software will undoubtedly be turned away the poor quality of the products offered by the software. Corporations have also manifested a major challenge in the process of getting the patents. In most of the countries, the legal procedures for getting the exclusive rights of a certain production entail an array of protocols and many requirements. The open public declaration of the production process or component has greatly been opposed. Software producing organizations argues that the public declaration requirement can result into imitation.

The other possible negative impact of patenting is that it has led to slow economic growth of various countries. Patents prevent people from taking innovations and inventions of other people without their permission an aspect known as infringement of patents. As a result, this has discouraged trade and entrepreneurial activities in various countries especially in African countries thus leading to a serious decline in economic growth in the countries. A significant decline in economic growth is also seen in other countries such as the US since patenting has discouraged trade and businesses in the country (Organisation for Economic Co-operation and Development, 2004).

In addition, inventions also play integral roles in copyrights and patent protection and this is a weakness. Thus, patents have negative impacts because they do not allow patent infringement, which means, no one has the audacity to view someone else’s invention without his or her permission. Several people describe invention as something that can be touched or felt. Often, people think of mechanical devices that may include machines. However, when it comes to patents and copyrights, an invention does not have to be something tangible but can be a concept. While working toward their studies, a good number of researchers slave away on experiments just to see their names mentioned in the acknowledgements by their professors and tutors who publish the work. In such a field of publications, all the information about investors is not important. However, this is the exact opposite of what happens when it come to patents and copyrights. A patent application must contain the name of the person who invented it and the patent must be made invalid if all the inventors are not identified (Slusky, 2007). An inventor is an initiator or a proprietor of a particular idea. Besides, an inventor should not come up with every part of the invention; he or she just needs to have contributed to at least one claim that is essential to the function and performance of the invention. Throughout the patent process, the number of people who qualify as investors may change because claims will be added to or deleted from the patent application. In respect to these, it can be deduced that the protection of the invention is very essential. Nevertheless, this is very detrimental to business partners, friends, or relatives who have the aim of bringing up a single business together. In the case of business partners, if one partner is not the inventor of a concept or an idea, then he or she will not have the right of using the other partner’s invention and this is a negative effect of patents. Therefore, the denial of rights to use an invention is a major factor behind slow economic growths as mentioned earlier and stunted innovation (Slusky, 2007).

Patents also have negative effects in that they do not give the patent owners the chance or right to exploit their own patents. The idea that patents have helped various entrepreneurs through innovation has recently changed. A patent no longer plays the role of bringing innovation only, but is a tool that has been used by firms to enhance their businesses. As a matter of fact, there is a good number of patent owners and managers of firms that presently capitalize on their intellectual property and patents that were unexploited previously. Furthermore, the annual increasing availability of patents has really promoted the diffusion of markets for technology which creates new strategies that have been of great benefit to patent owners and firm managers. In fact, patent owners are increasingly seizing the opportunity and are now becoming more and more reliant on externally sourced knowledge to ignite the innovation funnel and fill-in the roadmap of innovation (Kennedy, Watkins, Ball & Wiley InterScience (Online service), 2012).

The other negative effect of a patent is that it does not confer an economic monopoly. This confusion of a patent with an economic monopoly is often an error that persists in several researches that have done previously. According to patents and copyrights, all property rights are those rights that have ensured that other individuals are excluded from using something. However, this does not necessarily grant an economic monopoly that is a negative effect of patents. An economic monopoly is a situation where one individual, firm, group or institution possesses and has the sole control over the price at which a developed commodity may be sold into some specified market either domestically within a given country or in the global market. In other forms of property, this is very evident. This is because in other forms of property; one has the ability of owning a property such as a house but may not have an economic monopoly in such a scenario. Similarly, an individual may be a trader and have a monopoly in a particular market when selling a certain good while in the actual sense; he or she is not the owner of the good.  To begin with, just as several arguments articulate, a patent cannot provide an economic monopoly until the invention that it stands in for is meant for commercial purposes. However, other intellectuals point out that  even after full development, the patent will only protect an economic monopoly if the patent claims ‘cover’ in an economically relevant market. That is to say, patents do not provide alternative ways for competitors to offer the same functionality to their customers in a given market. When patents grant certain individuals in a given market economic monopoly, this could return the world’s economic environment to the issue of the nature of competition in innovation. In case an innovation is an improvement on a technology that already exists which means that an old technology substitute exists, and if the innovation and the old technology are similar in improvements made or uses to some degree then this affects the rate and the substitutability degree and limits the pricing power protected by the patent. Hence, forcing the introduction of a patent in any market seems to be disastrous. There have been arguments that it is very rare for patents to help in the protection of monopoly. Several researches articulate that patents never confer an economic monopoly, but that this should not be the typical scenario to be used in the analysis of the patent systems. The researchers also suggest that this is important as it could also reduce the possibility of suppressing innovation through the forceful introduction of patents (Barbarich, 2000).

 

Benefits of Copyrights

Copyrights have been very beneficial to a number of entrepreneurs. For instance, the entrepreneurs together with the several companies in the US have had successful business operations since the inception of copyrights. However, this has been accompanied by a negative effect because of rampant cases of discrimination and racism. In other countries, the courts have ruled that copyright is controlled or rather regulated by jurisdiction. This is to say that particular copyrights are only used or meant for their areas of jurisdiction. This has prevented people from doing trade and businesses in certain states because of the copyrights. The African Americans have been mostly affected because there is this superstition among the whites that the blacks are not intellectuals and that they are always up to no good. This has infringed the human rights of the blacks and this is not something that should be of discussion in the 21st century. In extension, this has greatly affected international trade because of the trade-offs and barriers that exist (Waelde, 2013).

On a legal perspective, copyright restriction is quite beneficial to the people who invent the software since they have the proprietary rights enabling them to solely have control of who should and who should not be allowed to use the available software. This is as far as the beneficial and reasonably acceptable measures are taken to allow the enjoyment of the rights. At one point or the other, depending on the location and the political, social and economic dynamics, some events may pose a challenge in this regard. This is to assert that push comes to shove, such laws are of less importance but laced with increasing disadvantages. For instance, in the organized terror groups, there are brilliant and diabolical computer programmers who seek to develop software, not for good reasons, but for malevolent purposes. Software initiated to corrupt the nature of information flow among the security agencies as well as the agents or intercept intelligence, will play a huge role in the reduction of the levels of effectiveness of security and the mode of operation of the agencies (Overwalle, 2009).

Having this software under the protection of the patent and copyright laws not only encourages such inventions but also the advancements of the kind of problems in the future. This is because the patenting process involves giving the sole rights and responsibility of offering permission for the use, modification or copying of such software to the owner or inventor. Software that is aimed at triggering the terror-based explosions, launching of biological warfare attacks as well as altering the operation of communication-based systems will pose a great threat if left in the hands of the people who seek to use it with ulterior motives and innuendos. As such, it is can be concluded that such innovation and their legally protected patenting aspects tend to be detrimental to the general society if they are in the wrong hands or are in the wrong path of operation.

On this note, it is also worth noting that, in as much as patenting and the laws involved help in the advancements of the person who came up with the software idea, this effect is short-lived. Apparently, the current world of technology is full of competition and the dynamism is more rapid and random than has ever seen before. The sophistication and the developments are so rapid that all that is invented at one time become obsolete after a short span of time. Evidently, some of the patent is seen in the world of technology today are some that were produced by reserved and protective computer software programmers. In fact, by the time they come out to the public for modification or review, their competitors have sprang up and are much better choices as software than they are. The reason for this is that the innovators of these tend to sleep on the benefit that the buying companies are offering them in terms of royalties and shares such that they do not engage in research for further improvements. This is to say that patenting locks out critiques that may help develop a good computer program into the best it can be (In Okediji & In Bagley, 2014).

Ultimately, on realizing that the software is becoming old and obsolete, it is brought out of the closet and there arises a problem; the problem of time stands out as the main hindrance for such a software. As such, a program that possessed the potential of becoming the best of its time is thrown away because the owner or the controlling company hoarded it to its antiquity stores. On the other hand, this problem could be looked at the perspective of general research. A number of software innovations are meant for the engagement and use in the field of research and development. When the decision on whom should gain access to the software and use it are left in the hands of the individual who in this case is the owner, there is a high risk bringing about conditions that are unachievable by the common researcher who potentially can come up with a life changing idea or discovery that may impact the economic dynamics and cause unforeseen intrigues as well as create sustainable development. As such, it is worth noting that patenting of software is not only a hindrance to the overall development in the bigger picture of societal advancements, but also an impediment to technological improvements needed as the software goes through phases of  appreciation (Arezzo & Ghidini, 2011).

Conclusion

To recap it all, the value of patenting is as good as, what was foreseen as the pioneers of such laws. The benefits are numerous to the people and programmers who happen to be lucky enough to come about with the ideas for the development of the software. Patenting allows for individual and company development by embracing the dimensions of working that the software brings to the table. It also allows for individual control of one’s innovation thus giving them the absolute right to control the accessibility as well as the usability of the software. The aspect of control also allows for the determination of what circumstances the software can be used and how it may affect the society. By acting as a crown for the achievement of innovation and inventing or programming software, patenting encourages more original work in terms of production and prototyping the software for use in the technological world.

On the other hand, patenting and copyrighting has its demerits that seem to outweigh the positive effects with which it comes up. From the above it has been noted that security is all about what is used to ensure it is in place. These involve tools and in this case, looking at communicative and automated devices and software, patenting proves to be a hindrance to the overall effectiveness of surveillance when as state of the art software is in the hands of the wrong people. The drawbacks it brings upon the field of research in the country, which as a consequence affects the economic development of the individual country, are additional burdens that are brought forth by patenting which is done locally or globally. On top of this is the aspect of costs and accessibility when the global patenting is used in this whole process. In a nutshell, therefore, it is obvious that the aspect of patenting that is referred to as global patenting should not be made the standard because, the challenges of patenting at local levels still pose a challenge to the people involved. Alternatively, a universally agreed upon framework should be put in place to ensure not only affordable but also accessible software in the market (Waldeck & Straus, 2009).

 

References

Adams, S. R. (2012). Information sources in patents. Berlin: De Gruyter Saur.

Arezzo, E., & Ghidini, G. (2011). Biotechnology and Software Patent Law: A Comparative Review of New Developments. Cheltenham: Edward Elgar Pub.

Barbarich, S. (2000). The complete manual on how to make money from your inventions and patents. Avon, Mass: Adams Media.

Holland, C. J. (2007). Intellectual property: Patents, trademarks, copyrights, trade secrets. Irvine, CA: Entrepreneur Press.

In Okediji, R. L., & In Bagley, M. A. (2014). Patent law in global perspective.

Kennedy, J. P., Watkins, W. H., Ball, E. N., & Wiley InterScience (Online service). (2012). How to invent and protect your invention: A guide to patents for scientists and engineers. Hoboken, N.J: Wiley.

Masterson, J. T., & Spring Meeting. Section of International Law and Practice, American Bar Association. (2004). International trademarks and copyrights: Enforcement and management. Chicago, Ill.

Nelson, W. (1982). Patents and deeds and other early records of New Jersey, 1664-1703. Baltimore: Genealogical Pub. Co.