The Programmer’s Source
Code and the Intellectual
Property Law
PREPARED BY IRENE L. BALMES
Program
Set of instructions expressed in words, codes, schemes or in any other form
Capable when incorporated in a medium that the computer can read
Perform or achieve a particular task or result.
Written in some programming language
Modes of Acquiring Ownership
1. Occupation
2. Law
3. Donation
4. Tradition
5. Intellectual Creation
6. Prescription
7. Succession
Example of Intellectual Creation
A. A car which uses gas-saving device which lessen the gasoline consumption by 90% created
and designed by an engineer
B. Painting made by an artist
C. Books written by an author
D. A logo designed by a student
E. Programs written by a programmer
F. Newspaper articles
G. PowerPoint presentation
H. Theses
I. Dissertations
Republic Act 8293
Known as the Intellectual Property Code of the Philippines
Consists of:
a. Copyright and related rights
b. Trademarks and Service Marks
c. Geographic Indications
d. Industrial Designs
e. Patents
f. Layout-designs
g. Protection of Undisclosed Information
An effective intellectual and industrial
property system is vital
1. To the development of Domestic and Creative activity
2. Facilitates Transfer of Technology
3. Attracts Foreign Investments
4. Ensures Market Access to our Products
5. The use of Intellectual Property Bears a Social Function
Intellectual Property Office (IPO)
▪ Where a person registers his/her patentable inventions
▪ To protect his inventions from unfair competition
▪ Note: It is up on the creator if he wants to register his inventions.
▪ Why register?
For improvement
For profit
For full protection : “NO PATENT, NO PROTECTION”, “First to file rule”
▪ Disadvantage: the applicant will reveal his formula and explain before experts that his work is
new, involves inventive steps and is industrially applicable
Republic Act 8293 Section 29
“First to File Rule”
“If two (2) or more persons have made the invention separately and
independently of each other, the right to the patent shall belong to the
person who filed an application for such invention, or where two or
more applications are filed for the same invention, to the applicant
who has the earliest filing date or, the earliest priority date.”
Most Common Intellectual Property
1. Trademark
◦ Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise
and shall include a stamped or marked container of goods.
2. Copyright
◦ Confined in literary and artistic works which are originally intellectual creations in the literary or artistic
domain protected from the moment of their creation. The author’s legal ownership of his/her original
intellectual creations in the literary and artistic domains.
3. Patent
◦ Any technical solution of a problem in any field of human activity which is new, involves an inventive step
and is industrially applicable. The patent owner can deprive others from using his patent for a period of
twenty years.
▪ Note: violations of these are called Trademark Infringement, Copyright Infringement, and Patent
Infringement
Elements of Patentable Invention
1. It is a technical solution of a problem in any field of human activity.
2. It must be new.
3. It must involve an inventive steps.
4. It must be industrially applicable.
Ownership of Copyright
RA 8293 Section 178.3. in case of work created by an author during and in the
course of his employment, the copyright shall belong to:
(a) The employee, if the creation of the object of copyright is not part of his
regular duties even if the employee uses the time, facilities and materials of the
employer.
(b) The employer, if the work is the result of the performance of his regularly-
assigned duties, unless there is an agreement, express or implied, to the
contrary.
Are computer
programs considered
as trade secret ?
Trade Secret
Defined as a plan or process, tool, mechanism or compound
known only to its owner and those of his employees to whom it is
necessary to confide it.
Extends to a secret formula or process not patented, but known
only to a certain individuals using it in compounding some article
of trade having a commercial value.
May consist of : (1) any formula, (2) pattern, (3) device or (4)
compilation of information that (1) is used in one’s business; and
(2) gives the employer an opportunity to obtain an advantage over
competitors who do not possess the information.
Are computer programs considered as
trade secret ?
Generally, programs are NOT “trade secret”
If computer programs will be considered a “trade secret”, then it
would have the effect of giving the employer the right to restrain
their programmers to reveal the code and use them outside.
But, if the program is used by a company for improvement of their
current status and only one person who has the source code
(employee), then that program can be considered as “trade secret”.
If the source code will be illegally revealed to others, the exclusivity
of the source code will be lost and hence, will adversely affect the
business of the company.
Decompilation
▪ The reproduction of the code and translation of the forms of
computer program to achieve the inter-operability of an
independently created computer program with other programs
may also constitute fair use.
▪ An example of a Fair Use of Copyright Work which means doing so
will not constitute copyright infringement.
What factors are to be
considered in
determining fair use of
copyright materials?
Factors
▪ The purpose and character of the use, is for commercial or non-
profit.
▪ The amount and substantiality of the portion.
▪ The effect of the use upon the potential market.
Examples of Fair Use
▪ Uploading a copyright song that contains only the first thirty
seconds of a song.
▪ Uploaded the first ten minutes of a movie.
Questions to ponder…
1. If someone uploaded a full version of a copyrighted song
or movie to the Net, will there be a Copyright
Infringement?
2. Is the Service Provider automatically liable with the
originator who uploaded a full cop of a copyrighted song
or movie?
Copyright Infringement
and Plagiarism
Distinguished…
What is plagiarism?
▪ The act of taking credit for someone else’s work.
▪ “Passing off as your own somebody else’s ideas or words”
– Supreme Court Justice Isagani Cruz
▪ Commonly used in the academe especially for
academicians conducting a research or giving a speech.
▪ The punishment is based on terms of a contract and
public condemnation.
▪ Copyright Infringement is within the are of LEGAL aspect
while Plagiarism is within the area of ETHICAL aspect.
▪ In copyright infringement, the culprit is NOT claiming the
work as his, but he is able to make money out of it by
doing the acts which only the copyright holder can legally
do.
▪ In Copyright Infringement, the person who will acquire
the infringed object/work shall also be liable.
The Optical Media Act
▪ Enacted on February 10, 2004 to strengthen the fight
against the proliferation of pirated CDs in the market.
Copyright Infringement vs. Plagiarism
Copyright Infringement Plagiarism
One who violates copyright breaks One who plagiarizes breaks a moral
laws that protects the rights of the code by claiming credit for the work
creator of an original work of someone else
Violation of copyright law may result Plagiarism may result in academic
in fines, imprisonment or both dismissal or loss of job.
SUMMARY
• In this lesson, we learned the importance of intellectual property
• Understand the concept of trade secret
• Learned whether source code is a trade secret.
