Fab Lab IP and Sharing Mechanisms

Fab Lab, Intellectual Property & Sharing

Peter Troxler [email protected]

Peter Troxler

•  2 years FabLab Amsterdam –  during this time also working with

Creative Commons Netherlands

•  since 2009 freelance FabLab expert & coach –  community stewardship –  FabLab topics: business models, management,

documentation & sharing –  setting up Fab Labs: Switzerland (Luzern,

Zurich), Netherlands (Rotterdam), …

Intellectual Property

•  the notion, that the results of intellectual or creative work have the same (legal) qualities as physical property

•  this idea makes some sense with unique artworks

•  hard to understand why something that can be copied without taking away the original should be property

History of Patents •  Patents apparently existed in ancient Greece •  Monopolies, granted by the kings, e.g.

–  1105 Count William of Mortagne grants a patent to a Norman abbot for erecting wind mills

–  1449 Henry VI grants a patent to John of Utynam for making stained glass

•  15th century Venice: patents on glass-making, mainly to control the trade

•  1624, UK: Statute of Monopolies – Parliament act against monopolies granted by the Crown

= monopolies should be granted only for the introduction of new manufactures to the inventor

•  1790 patent law in the US •  1791 patent law in France

History of Copyright •  15th century Europe: the printing press •  Crown & church felt a need to control printing –

license to print and trade books (i.e. censorship) •  England, 16th century: printers guild – Stationers’

company •  1709 Statute of Anne An Act for the Encouragement

of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned

= trade regulation –  limiting the term of protection –  breaking up the monopoly of the Stationers’ Company:

copyright availability to anyone

Intellectual Property Protection

•  protection of the commercial* interests of a creator/inventor

•  a monopoly to use the creation/invention (thing) for commercial gain

•  various types or protection, depending on the type of thing

•  some types arise automatically, some types only on registration

* in some types and legislations also moral interests

Fab Charter Secrecy: designs and processes developed in fab labs must remain available for individual use although intellectual property can be protected however you choose

•  Sharing for individual use – learning •  This is provided for in some of the legal IP protection mechanisms

(privat use, educational “exception”, fair use

The Stuff We Make What type of thing

Things that work

Ornamental things

Beautiful things

Electronic cirquits

Code (Software)

Documen-tation


Legally speaking

Things that work

inventions (technology)

Ornamental things

industrial designs

Beautiful things

works of art and literature

Electronic cirquits

? work of art and literature

Code (Software)

invention / work of art

Documen-tation

work of art and literature


Legally speaking

Protection mechanism

Things that work


Patent 1

Ornamental things

industrial designs

Industrial design right 2

Beautiful things


Copyright

Electronic cirquits


Copyright

Code (Software)


Patent / Copyright

Documen-tation


Copyright

1 also: Utility model 2 Trademark: distinctive sign or indicator

Patent •  A patent consists of a set of exclusive rights granted by a sovereign

state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention.

•  The rights typically include the right to prevent others from making, using, selling, or distributing the patented invention without permission.

•  A patent is granted upon application •  Typically a patent application must include one or more claims

defining the invention which must meet the relevant patentability requirements such as novelty and non-obviousness.

•  A patent lasts normally 20 years.

Industrial Design Right •  An Industrial Design Right protects the visual design of objects that

are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

•  The rights typically include the right to prevent others from making, using, selling, or distributing the object without permission.

•  The Design Right protection is granted upon application – however in the EU there is the Unregistered Design Right that automatically gives protection of 3 year from the first disclosure of the design

•  A design must be novel and have individual character •  Design rights last normally up to 25 years in 5 year periods (need

to be renewed)

Copyright •  Copyright gives the creator of an original work exclusive rights: •  Copyright it is "the right to copy", the right to determine who may

financially benefit from it, who may adapt the work to other forms, who may perform the work (related rights); and it gives the creator the right to be be credited for the work, not to have it falsely attributed, and to not have their work used in a derogatory or prejudicial manner (moral rights).

•  Copyright arises automatically with the (physical) creation of the work. In the US, copyright can be registered which gives additional rights to recompensations in case of infringement

•  Copyright is applicable to any expressible form of an idea or information that is substantive and discrete. Some countries require the notion of originality.

•  A note on moral rights: those can not be traded. •  Copyright normally lasts 70 years post mortem auctoris

Utility Models •  A utility model is an intellectual property right to protect

inventions. This right is available in a number of many national statutes. It is very similar to the patent, but usually has less stringent patentability requirements.

•  Petty patent (Indonesia), “poor man’s patent” •  Term often 6 to 15 years

Trademarks •  A trademark is the right to sue for unauthorized use of that

trademark •  A trademark requires registration (®) – but not in the US, there it

is sufficient to use it in trade, so there also exist unregistered trademarks (™)

•  A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound.

•  The registration of a trademark can be revoked •  Trademark needs to be maintained (renewed), typically every 10

years, indefinitely

Integrated Circuit Topologies •  Because of the functional nature of the mask geometry, the

designs cannot be protected under copyright law (except perhaps as decorative art).

•  Because individual lithographic mask works are not clearly protectable subject matter, they also cannot be effectively protected under patent law.

•  So since the 1990s, national governments have been granting copyright-like intellectual property rights conferring time-limited exclusivity to reproduction of a particular layout.

•  Protection term is much shorter: 10…15 years •  Protection upon registration or first commercial use

Trade Secret •  A trade secret is a formula, practice, process, design, instrument,

pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. In some jurisdictions, such secrets are referred to as "confidential information" or "classified information".

•  A company can protect its confidential information through non-compete and non-disclosure contracts with its employees or business partners.


Legally speaking


What is still possible

Things that work


Patent private use, research†

Ornamental things

industrial designs

Industrial design right

private use, inspiration

Beautiful things


Copyright private use, educational

Electronic cirquits


Copyright privat use, educational

Code (Software)


Patent / Copyright

see above

Documen-tation



† WARNING: not in the US


Legally speaking



Sharing mechanism

Things that work


Patent private use, research

Defensive publication

Ornamental things

industrial designs



?

Beautiful things



Creative Commons

Electronic cirquits



Creative Commons

Code (Software)


Patent / Copyright

see above FLOSS licenses

Documen-tation



Creative Commons

† WARNING: not in the US

Defensive Publication •  A defensive publication, or defensive disclosure, is an intellectual

property strategy used to prevent another party from obtaining a patent on a product, apparatus or method for instance.

•  The strategy consists in disclosing an enabling description and/or drawing of the product, apparatus or method so that it enters the public domain and becomes prior art.

•  Therefore, the defensive publication of perhaps otherwise patentable information may work to defeat the novelty of a subsequent patent application.

•  Needs to be available to a “relevant audience” (e.g. conference, trade journal)

Creative Commons •  A system of public licenses that grant reuse of copyrighted work •  The strategy is to use a publicly available, standardized license to

replace the normal contractual relationship between rights holder and user.

•  Rights holder can select, which restrictions s/he wants to add to the general permission to use, distribute or perform the work additionally to crediting the creator and mentioning the license –  Share-alike – user must re-license derivatives under the same license –  Non-commercial – use in connection with “making money” is not allowed (not

even fundraising for a charity or putting on a blog with Google Ads to cover hosting costs)

–  No derivatives – use only unaltered copies

•  There are (up to now) national versions of the licenses – the idea was to adapt the licenses to national legislation. This is probably going to disappear

•  Pay attention to compatibility issues when re-using material

FLOSS •  Free / Libre / Open Source Software •  Free Software

–  Freedom 0: to run the program for any purpose –  Freedom 1: to study how the program works, and change it –  Freedom 2: to redistribute copies –  Freedom 3: to improve the program, and release modified versions

•  Various licenses –  GPL –  LGPL –  BSD


Legally speaking



Sharing mechanism

Things that work


Patent private use, research

Defensive publication

Ornamental things

industrial designs



?

Beautiful things



Creative Commons

Electronic cirquits



Creative Commons

Code (Software)


Patent / Copyright

see above FLOSS licenses

Documen-tation



Creative Commons

Case FabFi •  open-source, FabLab-grown system to transmit wireless ethernet

signals across distances of up to several miles •  Documentation available at http://code.google.com/p/fabfi/wiki/

WikiHome?tm=6 under a Creative Commons by unported license, 3.0

•  General project description available at http://fabfi.fablab.af/ under a Creative Commons by-sa license

•  Uses various software components under various licenses, e.g. Squid web caching is distributed under the GNU General Public License (version 2), other licenses include the new BSD license (SchoolNet parts) and the Apache 2.0 license (LuCId http slave)

Case Ultimaker •  Open Source, FabLab-grown 3D printer, based on the RepRap •  Documentation available at http://reprap.org/wiki/Ultimaker

%27s_v1.5.4_PCB and http://wiki.ultimaker.com/Main_Page under the GNU Free Documentation License

•  Lasercut drawings available at http://www.thingiverse.com/thing:13571 under Creative Commons by-nc unported license ver. 3.0

•  Note that the GNU FDL and CC-BY-NC are not compatible; GNU FDL allows commercial reuse, GNU FDL requires preservation of “Invariant Sections”.

Neil Gershenfeld

The bad news is that intellectual property is no longer protectable. The good news is that intellectual property can still exist, but it will not be based on control of scarce resources. Companies will seek compensation by how they add value, not on their control of IP.

Sources Used •  FabFi documentation

–  http://fabfi.fablab.af –  http://code.google.com/p/fabfi/wiki

•  Frumkin, M. (1945). The Origin of Patent Law. Journal of the Patent Office Society 27 (3) March 1945, 143-149. Available online: http://www.compilerpress.ca/Library/Frumkin%20Origin%20of%20Patents%20JPOS%201945.htm

•  Schlesinger, D. (2010). The Globalization of Science and Technology. Available at http://www.weforum.org/sessions/summary/globalization-science-and-technology

•  Ultimaker documentation: –  http://reprap.org/wiki/Ultimaker%27s_v1.5.4_PCB –  http://wiki.ultimaker.com/Main_Page –  http://www.thingiverse.com/thing:13571

•  Wikipedia articles on the subjects (all under a Creative Commons Attribution-ShareAlike License, http://creativecommons.org/licenses/by-sa/3.0/): –  http://en.wikipedia.org/wiki/History_of_patent_law –  http://en.wikipedia.org/wiki/John_of_Utynam –  http://en.wikipedia.org/wiki/History_of_copyright_law –  http://en.wikipedia.org/wiki/Statute_of_Anne –  http://en.wikipedia.org/wiki/Patent –  http://en.wikipedia.org/wiki/Industrial_design_rights –  http://en.wikipedia.org/wiki/Copyright –  http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights –  http://en.wikipedia.org/wiki/Gebrauchsmuster –  http://en.wikipedia.org/wiki/Utility_model –  http://en.wikipedia.org/wiki/Trademark –  http://en.wikipedia.org/wiki/Trade_secret –  http://en.wikipedia.org/wiki/Integrated_circuit_layout_design_protection

Education

Fab Lab IP and Sharing Mechanisms