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CIS3090 - Social and Professional Issues in Computing

Lecture 6 - Property Rights

Christopher Staff, Department of Computer Science and AI

References:Computer Ethics, Chapter 6
Patent Act
Industrial Property (Protection) Ordinance
Intellectual Property Rights (Cross-Border Measures) Act
Copyright Act

Introduction

You are walking on a sandy beach. You come across a pebble or a piece of driftwood. Can you pick it up and use it as though it was yours? (Can you pick up all the pebbles and remove them from the beach?)

You're out for a walk on the Sliema sea-front. You come across a chair. Can you pick it up and use it as though it was yours?

You come across a car with the keys in the ignition and the doors unlocked. Can you help yourself to the car, and use it as though it is your own? What about a car that is "parked" in a field? or at the bottom of a cliff? First should raise objections because of vehicle registration documentments. Change in ownership must be registered with Vehicle Licencing Dept *BUT* only because vehice licencing dept needs to know who to chase for taxes! And to know who has the right to sell that object. Govt not interested in other things of same or greater value, because taxes are not levied for their transfer or possession. Insurance companies, however, are interested in possessions whose value is of a certain amount.

In a previous lecture, we considered information which has value. Here, objects have value. Let's work on principle that things are generally unowned (common property) until they are claimed. First thing to sort out is whether the claim is legitimate - are there any prior claims? Take the principle of land "ownership", for example. The first "owners" effectively stumbled on to it, laid boundaries, and said "right, this is mine!". That led to other people shifting boundaries and deciding that previously claimed land was in fact theirs. The authorities then introduced measures, to stop this sort of thing from happening. Settlers had to inform the authorities about the land that they were claiming, and pay a fee to i) check that it doesn't already belong to somebody else, and ii) so that that the land could be registered to prevent others from claiming it. So land couldn't be owned, unless it was registered and appropriate taxes were paid.

Some common property can be claimed and owned, but other common property cannot (you can pick up a couple of pebbles on a beach, but you cannot take them all. You can claim ownership over a couple of pebbles on the beach, but you cannot take home a tree). Is it possible to own natural phenomena?

Natural Rights vs. Consequentialism

Do we have a natural right to own the fruits of our labour? Should property be owned? What would happen if nothing was "owned", but everything was common property? Should ownership depend on whether the good consequences of owning the fruits of our labour outweigh the bad consequences?

Property may be acquired by staking a legitimate claim to it or by legal transfer (e.g., purchase, inheritance, etc.).

Associated Rights

What can you do with your property once you've laid claim to it, and legitimately own it? Can you dispose of it in any way that you like? Can you treat it in any way that you like? Can you set fire to it? It turns out that there are limitations to what you can do with your property. For instance, you cannot just "throw away" your car because you don't want it any more. Just because you legitimately own a gun, and you have the right to discharge it, doesn't mean that you can use it in any situation. Owning property usually gives the owner limited, as opposed to unlimited rights. Rights are normally limited to ensure that one property owner cannot infringe upon the rights of another property owner.

Property Rights in Computer Software

When you purchase most property it appears to be pretty obvious just what you're purchasing (land, vehicles, foodstuffs, appliances, etc.), and it also appears to be obvious that you are purchasing associated rights (the right to enter the property, and to enjoy it, though owning a vehicle does not give the owner the right to use it on public roads!). But what, exactly, do you own when you acquire computer software? What is computer software, anyway?

A computer provides an environment for the execution of computer programs, and the execution of a computer program on a computer modifies the state of computer registers, temporary storage, and output devices. Providing data interactively or in batch mode through input devices may cause changes to the behaviour of the computer program. There is nothing else like a computer and the way it can be temporarily modified by a computer program. A computer can be a calculator, telephone, communications system, data repository, data processor, chef, surgeon, nuclear weapons control centre, can fly aeroplanes, drive cars, ... if an algorithm can be designed for a task, a computer can execute that task.

The Copyright Act (Chapter 415, Laws of Malta) defines 'computer programs' to "include[...] computer programs whatever may be the mode or form of their expression including those which are incorporated in hardware, interfaces which provide for the physical interconnection and interaction or the interoperability between elements of software and hardware and preparatory design material leading to the development of a computer program: Provided that the nature of the preparatory design material is such that a computer program can result therefrom at a later stage;"

Computers, however, do appear to share properties with other, ownable objects. A computer without any software running on it is about as much fun as a VCR without a videotape playing on it. Although it might sound grand to claim that you have bought "Red Dragon", you have really only acquired a videotape recording of the film "Red Dragon", along with some limited rights. Similarly, when you purchase computer software, you are really only purchasing the medium on which the program is recorded, along with a licence agreement that gives the "owner" limited rights.

The Ethics of Imitation

"Imitation is the ultimate form of flattery" goes an old saying. But is it ethical to make copies of software? Is it ethical to make copies of paintings, books, musical works, television programmes, photographs, manuscripts, manuals, buildings, the "look and feel" of user interfaces, furniture (antique or modern), maps and plans, recipes for food? In fact is it ethical to make a physical copy of anything that has a physical shape or form? Is it ethical to take a photograph of anything that has a physical shape or form, including photographs of photographs?

The Free Software Foundation makes the claim that "Free software is a matter of freedom: people should be free to use software in all the ways that are socially useful. Software differs from material objects-- such as chairs, sandwiches, and gasoline--in that it can be copied and changed much more easily. These possibilities make software as useful as it is; we believe software users should be able to make use of them." (Philosophy of the GNU Project), and argues software should be unowned and free, where 'free' refers to "the users' freedom to run, copy, distribute, study, change and improve the software". ( The Free Software Definition), rather than the software being non-commercial.

Copyright issues arose as soon as soon as equipment was created which permitted the mass replication of works, such as the printing press. Copyright is law which determines who, literally, gets the right to make copies of the thing covered by copyright. In modern times, the situation is exacerbated as replicating or copying machinery is also cheaply available to the masses. With analogue equipment quality deteriorates with replication and anti-copyright theft lobbyists have appealed to the general public to respect the work's creator's wishes to have the work seen in the best possible quality. However, that appeal is redundant in the digital world, where computers can make bit-identical copies of an original. But what motivates copyright?

Copyright proponents claim to have three main motivations: the right of an author/creator to be known as the creator of the work (the right to recognition); the right to prevent others from profiteering from their work without permission; and that copyright will create an environment in which innovation can flourish. Copyright opponents claim that the real motivation is to ensure that the copyright holder can maximise their profits, but that this is a false economy because the vast majority of people who use copied work would not have bought it anyway, and that innovation can happen even in a world in which things are not owned. Indeed, it does seem to be an ethical non-issue if nothing is ownable. Things are simply used temporarily and then returned to society (e.g., library books, bicycles in Amsterdam, Copenhagen, etc.). If a work is created, the work may be improved upon by those who use it, and the original creator may benefit from the improvements. But what happens if some members of the society begin keep things for longer than they actually need them? What happens if they then levy a fee for others to borrow the things? What happens when they assume ownership over things? Clearly, the rights of others to make free use of those things will have been infringed. So, even in the case that works are generally unowned, there are still rights associated with them. This would be consistent with the stand taken by the Free Software Foundation. Laws, on the other hand, generally recognise that works are owned (frequently, but not always) by their creator. Laws recognise that works can have a value, and by default, the creators should enjoy the benefits of that value. Laws also allow the creator to do whatever they wish with their rights, so that, if they wish to allow others to copy, modify, etc., works that they own, then they can. Nobody disputes that the creator of a work has a right to be recognised as such, and that people who take the works of others and present it as their own are stealing something that does not belong to them.

The argument that innovation will happen only if investment is protected is interesting. At a very basic level, if you have spent time and money on something that you intend to sell, them you would probably feel rather hard done by if a third-party makes copies of your work and sells them for less than you can afford to do (because you need to recover an investment that they have not made). The same would apply if you are a farmer growing vegetables for sale, and as soon as they are ripe a third-party "relieves" you of them and sells them. But what about situations where a copy of software is made for private use? Nobody is making any money out of the transaction (you're not copying it to sell it, and nobody has sold you a copy for profit). You're not depriving the owner of the original (they still have possession of it). Also, the copyright holder isn't actually losing any money, because you wouldn't have bought it anyway. There's lots of freeware out there that although not as convenient to use, will allow you to do pretty much the same thing. You'd happily continue to use the freeware, if you had to, so what difference does it make?

What is interesting about copyright laws for software is that they are probably one of the few areas about which ethical positions, in the absence of a law, are actually neutral. However, because software is covered by copyright laws, then it is unethical to breach copyright, if only because it is unethical to break the law.

Computer Software and Copyright

As computer scientists and information technology professionals, our interest in the Copyright Act is twofold. First, as members of this society, it provides a legal framework to determine how we should respect works produced by others. Secondly, it provides a basis for determining our own rights as producers of works which are copyrightable!

The Copyright Act in Malta covers not only copyright but also intellectual property rights (IPR). We will discuss IPR in a future lecture. I'd also like to remind you that in this lecture series we are not, generally, approaching ethical issues from a legal perspective, and neither are we attempting to interpret the law.

According to the Copyright Act, there are five types of works that are eligible for copyright:

  1. artistic works;
  2. audiovisual works;
  3. databases;
  4. literary works;
  5. musical works.
Computer programs are included in literary works. Additionally, the computer program, along with other literary works, must have "an original character", and must have been "written down, recorded, fixed, or otherwise reduced to material form". (The Copyright Act, article 3(2)). We shall not consider databases, because the Act refers to the collection of data, rather than the software itself (the software itself is, of course, covered by the meaning of "computer program").

What does copyright cover?

Under Maltese Law, copyright gives the copyright holder the exclusive right to authorise or prohibit the following (summarised from The Copyright Act, article 7):

  1. reproduction of all or part of the work;
  2. rental and lending;
  3. distribution;
  4. translation into other languages, including other programming languages;
  5. modification, and the application of this law to the modification;
  6. broadcast or communication;
  7. display or performance.
The copyright holder can extend limited rights to third-parties through a licence agreement.

Consider the translation of a novel into a foreign language, and consider the translation of a C program into a Pascal program. Maltese Law prohibits both. However, copyright (in any country) is not meant to prohibit works which, although they may resemble other works, are in fact derived totally independently of each other. Although it may not be possible to make the claim for certain novels or poems, it is quite possible that artists may be inspired to paint similar paintings of the same landscape. Identical paintings, however, are quite unlikely. However, it is possible to write completely different computer code (in the same or different languages), but the outcome of each program is identical.

What does copyright not cover?

In the case of computer programs, there is nothing to stop a licensed user from figuring out how a program works, or what it does, as long as it is done through "normal" use which does not include disassembly. A licensed user is also allowed to reproduce or translate copyrighted code to achieve interoperability with other code, if this is not made readily available. (NB: I presume this is meant to cover proprietary code that is "made to order", rather than off-the-shelf software packages, but the Act does not appear to differentiate between the two).

Who holds the copyright?

In all cases other than computer programs, copyright is held by the author or joint authors, unless there is an agreement to the contrary. For computer programs, however, if the program is written "in the course of the author's employment, in the execution of his duties or following the instructions given by his employer", then the economic rights transfer to the employer unless agreed otherwise.

Burden of proof

The burden of proof in cases of copyright infringement lies squarely on the shoulders of the entity claiming the infringement.
For further information e-mail cstaff@cs.um.edu.mt

Date last amended: Sunday, 10th November, 2002