Intellectual Property Rights in Software Development Scenarios Case Study

Legal Frameworks and Challenges in Digital Innovation Protection

Introduction

The prevention of unethical practices regarding occupying the right of invention or creativity has been secured by the “Intellectual Property (IP) Rights”. In the UK the governmental body responsible for handling similar cases is officially known as “The Intellectual Property Office (IPO)” and protects the ideas of money-making, enhances the market value of a business, helps to “stand out from the competition”, and increases export opportunities in the industry. This study portrays a case study where the IP rights of Asif and Hannah, respectively a cyber security analyst and a software developer who work in the company SkyCupid Corp., a computer software company. The relevant legal remedies and reasoned possible solutions to the issues have been discussed on the scale of Asif and Hannah. The subject matter of this study orients the IP rights and relevant laws.

Overview of the Issues

Issues in the case of Asif

In SkyCupid Corp. Asif work as a cyber security analyst and prevents the company’s internal system and functionalities of the internet from “external attacks across the internet”. Besides working in the company, to enhance his professional context and for developing software skills Asif has learned advanced techniques to develop gaming applications or software. While using his free time, this individual has developed a 2D game, d “Dragon Forge”. The application has faced several negative comments and reviews, but apart from that, the reputation of the game enhanced, and around 248,000 downloads were noticed for this app making a profit of 200,000 euro.

The company where Asif works have claimed that they are the owner of the application and demanded to transfer the copyright and sales of the game to Hannah, who is the Senior App developer of SkyCupid Corp. At this point, Asif disagreed with the proceedings of the company, as regardless of the bad comments and reviews, the application earned a large amount of profit. In this regard, Asif must follow certain legal proceedings to claim his efforts toward the gaming application and the value of his creativity. Besides this, it is the result of the course, that Asif has brought to learn the development of gaming software.

This case requires significant justice as per the EU Copyright Act that conveys that except the maker or the owner nobody possesses the right to reproduce the invention or make it public. It has been aligned with the CDPA Act in this study. EU Copyright Act protects the right of the Intellectual Property “until the duration of 70 years” after the author’s death in the case of a joint authorship. The intellectual innovation of the author has been maintained by several acts such as “Software Dir., Art. 1(3); Term Dir., Art. 6, Recital 17; Database Dir., Art. 3(1); Infopaq Int v. Danske Dagblades Forening, Case C-5/08 [2009] ECR I–6569, [37], Article 2(a) of Directive 2001/29”. All of these are relevant for this study along with the “the Software Directive (Directive 2009/24/EC), the Database Directive (Directive 96/9/EC), the Term Directive (Directive No. 2006/116/EC), and the Information Society Directive (Directive 2001/29/EC)”.

Hence, the legal proceedings of copyright for protecting his invention are the major issue in this case. As per the “Designs and Patents Act 1988 (CDPA 1988)” the copyright of creative content, illustration, and similar inventions must be protected[1]. As per the decision of CJEU, the standard section of “1(1)(a) of the CDPA” conveys the originality of the designs or any form of art must maintain originality, and this “EU-derived legislation” is the major protector that is supposed to be followed while considering legal proceedings from the end of Asif. The criteria of the ownership of the gaming app have to be evidenced for better remedy of this case.

Issues in the case of Hannah

Hannah is a Senior App developer of SkyCupid Corp. and is the profit of “Dragon Forge”, the gaming app developed by Asif has been claimed to transfer upon the credit Hannah, has faced a protesting urge on the same. Besides this, the negative feedback and negative reviews on the app store have held certain drawbacks of the application. In this regard, has not shown any willingness to ownership designing the game. She was also aware of the poor design and negative feedback due to bad graphics and did not consider the comment to ruin her reputation or career. She was aware of the IP rights and knew that the legal jurisdictions are in the support of Asif, and the company will not portray their default in this regard[2]. This case associates with the “course of employment 11(2)” as she has not maintained all the legal ethics to be an employee of an organization by selling her design that has been already used by SkyCupid Corp.

Apart from the perspective of IP rights, Hannah has conducted certain talks regarding providing software for a dating app to a company, d Cinder Corp which is the competitor of SkyCupid Corp. In this regard, the design she has designed for SkyCupid Corp has been transferred to the competitor company. The new app is similar in utmost context except for the layout and color schemes. That is the reason that Hannah is tense regarding the potential claim that arises against her while the duration of dealing with Cinder Corp. As per the CJEU and legal administrations, an employee of a company cannot publish his or her work to another company as the individual is bound to enhance the sales of the company in which he or she is employed on a full-time basis[3].

The issues faced by Hannah are genuine and as per “Section 5(2) WA 2018” which considers in the case of not interpreting the “statutory language to include subject matter” the “principle of supremacy” will be followed and “EU(W)A) may require the court to disapply the statute”. The definition of the author has been clarified with the help of “Section 9(1) CDPA 1988” and “Section 9(2) CDPA 1988”, and these are the reason why Hannah has felt the problems that are supposed to seize her career[4].

Critical understanding of legal framework regulating Intellectual Property rights

The legal framework of Intellectual Property rights of the UK considers relevant intangible aspects to recognize and align the law for protecting the ownership of the creator or inventor through managing “copyright (artistic and literary expression), patent (inventions and innovations), and trademark (symbolic information)”[5] as Asif created the gaming app, he owns the ownership. In this case, the IP rights are associated with the “copyright (artistic and literary expression)” factors while managing the authorship of Asif. The association of copyright has been determined with the authorship through “Section 12(2) CDPA 1988”. This law has been intended to secure the “skill and labor of the right kind” while analyzing and passing the “traditional British test of originality”.

The author of “intellectual creation” must be rewarded as an author while considering the “European standard of originality”. In this regard, the issues and problem statement associated with this case are in the support of Asif and thus create an issue for sustaining opportunities of Hannah. In this case, the association of “The Copyright Act, 1957”, “the Designs Act, 2000”, and “the Patents Act, 1970” are expected to be aligned with “the Geographical Indications of Goods (Registration and Protection) Act, 1999”. This will ensure the protection of rights on the creation of the Gaming app for Asif, and, this is easier to provide solutions to Asif rather than Hannah.

The involvement of creative choices has been protected through significant laws and legislations among which the reputed one is the “Euro-copyright speak”. As per this speak the copyright of a particular creativity will be limited only within the European Union (EU)[6]. This has created negative confrontation as the limitation of the application is supposed to reduce the reputation for the potential convergence and seize the internationally downloadable factors, and thus, creates issues for further development. The maintenance of possible development of the application is supposed to be conducted after freeing the legal administration or restriction on the same which says in support of the creators, especially for the graphical designers for such similar cases. The maintenance of profitable connectivity with the competitor organization of SkyCupid Corp must not be continued by Hannah as it is required to be undergone through public and legal proceedings. Similar factors are considered as moonlighting in certain industrial contexts and to avoid controversy it is safe to avoid such practices.

Principles of IP Law

The “Principles of IP Law” considers that the author or creator of an invention must be considered as the owner of the same, and has been aligned with the knowledge of the case study throughout this study. Besides this ownership of reputation or utilization, the creator holds the authorization for seizing or prohibiting the use of the same[7]. The IP Clause also derives the same concerns and associates with the ownership of the “works or inventions created by an employee or consultant” and, in this regard, Asif is holding the ownership of the game. Before that, the originality of the work must be checked and analyzed thoroughly with the help of an “assignment or license” that deals with “existing moral rights and future rights”. As per the Principles of IP Law an individual is the owner of a property when he or she has created it and “meets the requirements for copyright, a patent or a design”.

The “3 criteria of EU copyright regime” conveys that directive will provide “legal certainty for certain cross-border use of copyrighted material in three main areas” such as “digital and cross-border uses in the field of education, text, and data mining in the field of scientific research, and preservation of cultural heritage”. These are the harmonized rights of managing “reproduction, communication to the public and distribution” which are associated with the economic rights as well. It also promotes “freedom, democracy, equality and the rule of law”. The EU copyright regime has to be considered in this case for managing the moral rights of Asif regarding making the app and consuming the profit rather than transferring it to the company.

The relevant legal remedies

The legal remedies of the case study depend on the IP rights and for this several dimensions of discovery or invention of a worker such as “literary, dramatic, musical, artistic work, or film” have been described to be protected under “Section 11(2) CDPA 1988”[8]. The association of proper remedies is supposed to be derived from the consideration of similar legal aspects. The legal and moral rights of protecting IP rights focus on the punishment which is “imprisonment and fine as punishment for infringement” for misleading the “Patent and Design law”. This remedy suggests the “Trademark Act 1999, Section 103-108” that protects the right of authorship of a business or the source of income, and, in this regard, supports the similar concern of the revenue generated through the gaming app.

The remedies against “infringement of copyright” are “Civil remedies”, “Criminal remedies”, and “Administrative remedies”. As per “Section 178 CDPA 1988” it has been conveyed that “a person who is employed under a contract of service or apprenticeship” is considered to be an employee of the organization, and, as per this definition, Asif and Hannah both are the employees of SkyCupid Corp[9]. In this regard, the company must protect its values and moral rights of developing new software while considering its generated revenue. As the company is willing to transfer the authorship of the game developed by Asif to Hannah, it is misleading Hannah and not following the pathway of IP rights. Based on this, the legal advisors of Asif and Hannah are supposed to charge “Administrative remedies” against the “infringement of copyright” of SkyCupid Corp.

Reasoned possible solutions to the Issues

Possible solutions to Asif

The legal and moral rights of protecting the copyright and certain administrative remedies have been discussed previously. Besides this, it has been considered that Asif can prohibit the game to be downloaded in the game store or app store as per “Principles of IP Law” to seize the revenue of the company coming from the application. The assistance of the possible solutions has been aligned with similar case laws that justify the solutions in this case. The case of “Burrow-Giles Lithographic Co. v. Sarony” conveys the protection of copyright regarding photography that has been decided by the “Supreme Court of the United States”[10]. The verdict has been considered in this regard as the alignment of “copyright infringement suit” has been portrayed in this case where the photography of Napoleon Sarony has been justified as a normal photo which has followed “copyright infringement suit” against “Burrow-Giles Lithographic Company”[11]. Asif must continue with certain police actions for aligning justice with the copyright issues of the organization.

The above-mentioned case has provided jurisdiction and relevant support from the end of the Supreme Court where the moral rights of the invention must be protected and thus creates authorship and protects the same for Asif. Besides this, another case renowned as “Brighton v. Jones [2005] FSR (16) 288” has been aligned in this context as a writer of a play has complained against the defender who has changed certain scenes throughout the rehearsal of the play and later claimed to own the authorship of the play “Stones in his Pockets”[12]. The case has been judged while dismissing the joint authorship of the defendant and has been charged for “words to be used in the play”. The management of scripts has been aligned with the single ownership and thus the judgment of the case indicates the right direction of supporting ownership of intellectual property. The police actions sought by Asif need to be maintained through the “Two prong-test”. It is associated with “Constitutional scrutiny” and the undertaken police actions must pass the “Two prong-test” with reliable causes regarding basis of the complaint and evidence of reliability. This test considers “independent police corroboration” regarding “substantial basis for a fair probability”. As per this test, without the consent of the warrant an information cannot be considered as reliable. For this, Asif must provide certain evidence of his course completion certificate on game-developing apps and the process of making the application. Thus, his complaint against the company will be reliable to police and court will take further actions through this “Two prong-test”.

The above-mentioned case suggests the protection of authorship and dismissal of joint authorship if any for preventing the infringement of copyright factors. This provides support regarding the protection of the copyright of the application of games Asif, and, in this regard, the maintenance of proper consideration of the rights must be protected with managing significant reflection of the executive concern of IPO which supports the "Department for Business, Energy & Industrial Strategy, supported by 1 public body"[13].

Possible solutions for Hannah

The factors which have been followed in the case of Hannah indicate misleading the organization towards sharing a similar application with the competitive organization. However, she does not possess any willingness to own the copyright of the application developed by Asif to avoid negative feedback and reviews. In this regard, to justify the solution of the same, the case law of “Martin v. Kogan [2021] EWHC 24 (Ch) (Meade J)” has been analyzed which reflects a case of joint authorship which has been ordered for re-trial from the end of “Court of Appeal decision”[14]. Collaboration in the context of writing has intersected with common design and thus sought the appeal from the court to demand the significant contribution of the screenplay without deserving so. This case law has been justice while dividing the shares as per the contribution and joined authorship based on quantitative actions[15]. She must align with the “Course of employment 11(2)” as rendering the services without the permission of the boss is unfair and this can be risky to work in that organization.

A similar context has been noticed in the case of “Sony Corp. of America v. Universal City Studios”, where “Universal sued Sony for copyright infringement” has been portrayed[16]. The association of this study provides an in-depth understanding regarding the determinant action against violating the legal rules against consumers. The violation took place against the copyright act and thus holds immense importance regarding the establishment of “fair use of copyrighted works”. The “manufacturing and marketing of the VTR” has been protested from the end of the court for supporting and quenching the monetary damages through “equitable accounting of profits”. Thus, the case has been closed while managing the recovery of the lost right.

The above-mentioned case laws suggest that Hannah must consider joint authorship to reduce the restriction of negative reviews and support the app while developing the graphics and design to maintain appropriate share regarding the establishment and growth of the game[17]. The above-mentioned cases are essential for understanding the required solution regarding the case of Asif and Hannah. The only solution for Hannah is to share the right to the application after contributing towards the development of the app while withdrawing the ownership of the application provided to the competitor company of SkyCupid Corp. She must seize access to the dating app so that the copyright of the application remained protected as well as considered to be the only authorship of Hannah as well.

Conclusion

This study provides a valuable context regarding maintaining the “Principles of IP Law” while focusing on “Intellectual Property (IP) Rights”. The case study of protecting the right of a gaming app designed by Asif and protecting the interest of avoiding legal consequences by Hannah, the Senior App developer of SkyCupid Corp have been analyzed thoroughly in this study with specific legal solutions. An overview of the issues faced by Asif and Hannah in this case study has been furnished in this study. The entire study holds an informative vision toward enhancing legal and moral rights for Asif to protect his ownership of his self-developed 2D game, d “Dragon Forge”. The factors of avoidance have also been highlighted in this study to be followed in the further approaches of similar constraints.

References

Bently L, Sherman B, Gangjee D, Johnson P. Intellectual property law. Oxford University Press; 2022 Nov 9. Available at: https://www.academia.edu/download/55913341/2017.BAR-REVIEW.LECTURE.7.9.2017_1_1.pdf (Accessed on: 24.03.23)

Birch K. Technoscience rent: Toward a theory of rentiership for technoscientific capitalism. Science, Technology, & Human Values. 2020 Jan;45(1):3-3. Available at: https://journals.sagepub.com/doi/pdf/10.1177/0162243919829567 (Accessed on: 24.03.23)

Bloch-Wehba H. Global platform governance: private power in the shadow of the state. SMU L. Rev.. 2019;72:27. Available at: https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=2390&context=facscholar (Accessed on: 24.03.23)

Bowker RR. Copyright, its History and its Law. BoD–Books on Demand; 2020 Jul 24. Available at: http://measboralaws.com/images/pdf/books-magazines/20fec58a213fa775ab54808d88833cf8.pdf (Accessed on: 24.03.23)

Cohen JE, Loren LP, Okediji RL, O'Rourke MA. Copyright in a global information economy. Aspen Publishing; 2019 Oct 30. Available at: https://coolcopyright.com/application/files/5215/3134/9546/2018_COOL_Copyright_Supplement.pdf (Accessed on: 24.03.23)

Corti L, Van den Eynden V, Bishop L, Woollard M. Managing and sharing research data: A guide to good practice. Sage; 2019 Oct 7. Available at: https://dam.ukdataservice.ac.uk/media/455308/managing_data_26nov2014.pdf (Accessed on: 24.03.23)

Craig P, De Búrca G. EU Law: Text, Cases, and Materials UK Version. Oxford University Press, USA; 2020 Jul 21. Available at: https://toc.library.ethz.ch/objects/pdf03/z01_978-0-19-871492-7_01.pdf (Accessed on: 24.03.23)

Durand C, Milberg W. Intellectual monopoly in global value chains. Review of International Political Economy. 2020 Mar 3;27(2):404-29. Available at: https://hal.science/hal-01850438/document (Accessed on: 24.03.23)

Dyck VA, Hendrichs J, Robinson AS. Sterile insect technique: principles and practice in area-wide integrated pest management. Taylor & Francis; 2021. Available at: https://library.oapen.org/bitstream/handle/20.500.12657/43144/9781000377767.pdf?sequence=1 (Accessed on: 24.03.23)

Gerke S, Minssen T, Cohen G. Ethical and legal challenges of artificial intelligence-driven healthcare. InArtificial intelligence in healthcare 2020 Jan 1 (pp. 295-336). Academic Press. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7332220/ (Accessed on: 24.03.23)

Ginsburg JC. Burrow-Giles v. Sarony (US 1884): Copyright Protection for Photographs, and Concepts of Authorship in an Age of Machines. Twelve Tables Press; 2020. Available at: https://scholarship.law.columbia.edu/books/297/ (Accessed on: 24.03.23)

Ito K, O’Dair M. A critical examination of the application of blockchain technology to intellectual property management. Business Transformation through Blockchain: Volume II. 2019:317-35. Available at: https://eprints.mdx.ac.uk/25167/1/U_Leg2_ODair_22Apr18.pdf (Accessed on: 24.03.23)

Joyce C, Ochoa TT, Carroll MW. Copyright law. Carolina Academic Press; 2020. Available at: https://www.cap-press.com/pdf/JoyceCopyrightLaw11e2020SUPPWM.pdf (Accessed on: 24.03.23)

Mattoo A, Rocha N, Ruta M, editors. Handbook of deep trade agreements. World Bank Publications; 2020 Sep 23. Available at: https://books.google.com/books?hl=en&lr=&id=6UYAEAAAQBAJ&oi=fnd&pg=PT5&dq=Intellectual+Property+rights,+legal+remedies+of+copyright&ots=WZLBJSGsTm&sig=pv_jUSbvd3si0B17k9cDWMZxUBY (Accessed on: 24.03.23)

Miric M, Boudreau KJ, Jeppesen LB. Protecting their digital assets: The use of formal & informal appropriability strategies by App developers. Research Policy. 2019 Oct 1;48(8):103738. Available at: https://research.cbs.dk/files/60890789/lars_bo_jeppesen_et_al_protecting_their_digital_assets_acceptedversion.pdf (Accessed on: 24.03.23)

Newton NJ, Anderson R, Goldberg C, LaVelle J, Royster JV, Singer JW. Cohen's handbook of federal Indian law. LexisNexis; 2019 Jun 21. Available at: https://digitalrepository.unm.edu/cgi/viewcontent.cgi?article=1064&context=law_facbookdisplay (Accessed on: 24.03.23)

Pila J, Torremans P. European intellectual property law. Oxford University Press, USA; 2019 Aug 8. Available at: https://toc.library.ethz.ch/objects/pdf03/e06_978-0-19-872991-4_01.pdf (Accessed on: 24.03.23)

Simone D. Copyright and collective authorship: Locating the authors of collaborative work. Cambridge University Press; 2019 May 2. Available at: https://discovery.ucl.ac.uk/id/eprint/10059448/7/Simone%20Copyright%20and%20Collective%20Authorship%20RPS%20upload_edit%20chptr1.pdf (Accessed on: 24.03.23)

Simone D. Screenplay collaborator granted authorship credit in IPEC ‘encore’. Journal of Intellectual Property Law & Practice. 2021 Mar;16(3):201-3. Available at: https://academic.oup.com/jiplp/article-abstract/16/3/201/6134896 (Accessed on: 24.03.23)

Smith, M.W., 2020. A Judicial Teaching Point: The Lesson of the Late Justice John Pau l Stevens in Sony v. Universal City Studios as a Response to Civil Lawfare. Corp. & Bus. LJ, 1, p.71. Available at: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cablj1&section=16 (Accessed on: 24.03.23)

Solove DJ, Schwartz PM. Information privacy law. Aspen Publishing; 2020 Nov 18. Available at: https://www.ubalt.edu/about-ub/offices-and-services/provost/courses-and-program-development/09-15-15_law768.pdf (Accessed on: 24.03.23)

Sornarajah M. The international law on foreign investment. Cambridge university press; 2021 Jul 1. Available at: https://citeseerx.ist.psu.edu/document?repid=rep1&type=pdf&doi=277b0cb312369b754c6992b742e3c9a2da7dcdde (Accessed on: 24.03.23)

Tomczyk ?. Skills in the area of digital safety as a key component of digital literacy among teachers. Education and Information Technologies. 2020 Jan;25(1):471-86. Available at: https://link.springer.com/article/10.1007/s10639-019-09980-6 (Accessed on: 24.03.23)

Von Schomberg R. Why responsible innovation?. InInternational handbook on responsible innovation 2019 Jul 26 (pp. 12-32). Edward Elgar Publishing. Available at: https://philarchive.org/archive/VONWRI (Accessed on: 24.03.23)

Wachter S, Mittelstadt B. A right to reasonable inferences: re-thinking data protection law in the age of big data and AI. Colum. Bus. L. Rev.. 2019:494. Available at: https://ora.ox.ac.uk/objects/uuid:d53f7b6a-981c-4f87-91bc-743067d10167/download_file?safe_file=3424-Article+Text-5776-1-10-20190913.pdf&file_format=application/pdf&type_of_work=Journal+article (Accessed on: 24.03.23)

[1] Wachter S, Mittelstadt B. A right to reasonable inferences: re-thinking data protection law in the age of big data and AI. Colum. Bus. L. Rev.. 2019:494.

[2] Von Schomberg R. Why responsible innovation?. InInternational handbook on responsible innovation 2019 Jul 26 (pp. 12-32). Edward Elgar Publishing.

[3] Tomczyk ?. Skills in the area of digital safety as a key component of digital literacy among teachers. Education and Information Technologies. 2020 Jan;25(1):471-86.

[4] Sornarajah M. The international law on foreign investment. Cambridge university press; 2021 Jul 1.

[5] Solove DJ, Schwartz PM. Information privacy law. Aspen Publishing; 2020 Nov 18.

[6] Pila J, Torremans P. European intellectual property law. Oxford University Press, USA; 2019 Aug 8.

[7] Newton NJ, Anderson R, Goldberg C, LaVelle J, Royster JV, Singer JW. Cohen's handbook of federal Indian law. LexisNexis; 2019 Jun 21.

[8] Joyce C, Ochoa TT, Carroll MW. Copyright law. Carolina Academic Press; 2020.

[9] Ito K, O’Dair M. A critical examination of the application of blockchain technology to intellectual property management. Business Transformation through Blockchain: Volume II. 2019:317-35.

[10] Ginsburg JC. Burrow-Giles v. Sarony (US 1884): Copyright Protection for Photographs, and Concepts of Authorship in an Age of Machines. Twelve Tables Press; 2020.

[11] Gerke S, Minssen T, Cohen G. Ethical and legal challenges of artificial intelligence-driven healthcare. InArtificial intelligence in healthcare 2020 Jan 1 (pp. 295-336). Academic Press.

[12] Simone D. Copyright and collective authorship: Locating the authors of collaborative work. Cambridge University Press; 2019 May 2.

[13] Bently L, Sherman B, Gangjee D, Johnson P. Intellectual property law. Oxford University Press; 2022 Nov 9.

[14] Simone D. Screenplay collaborator granted authorship credit in IPEC ‘encore’. Journal of Intellectual Property Law & Practice. 2021 Mar;16(3):201-3.

[15] Birch K. Technoscience rent: Toward a theory of rentiership for technoscientific capitalism. Science, Technology, & Human Values. 2020 Jan;45(1):3-3.

[16] Smith, M.W., 2020. A Judicial Teaching Point: The Lesson of the Late Justice John Pau l Stevens in Sony v. Universal City Studios as a Response to Civil Lawfare. Corp. & Bus. LJ, 1, p.71.

[17] Bowker RR. Copyright, its History and its Law. BoD–Books on Demand; 2020 Jul 24.