Social Issues and Professional Practices

CHAPTER 5 – THE PROGRAMMER’S SOURCE CODE AND

THE INTELLECTUAL PROPERTY LAW

The Programmer’s Source Code

All software that we used is a product of a list of instructions which the machine is capable to
follow. These lists of instructions are called program which is then translated into a machine language
which the computers can directly understand. A computer program is a set of instructions expressed in
words, codes, schemes or in any other form, which is capable when incorporated in a medium that the
computer can read, of causing the computer to perform or achieve a particular task or result (Sec. 171.4,
RA 8293). Of course, machines cannot understand our language, thus, programs are written in some
programming language. So, if one is to write programs, he must learn an appropriate programming
language.

Writing programs is not easy, thus, before the open source technology blooms, it is normal for a
programmer not to share and/or distribute his program or source code. A programmer’s source code is
like a recipe, or a secret formula or process from which the execution by the computers is anchored. If a
programmer had written programs for his employer, who will own the system, the employer or the
programmer? How about the source code? Can the employer demand, as a matter of right, from his
programmer to provide him with the source code? These are some of the questions which will be
addressed by this chapter.

Intellectual Creation

Our civil code provides for different modes of acquiring ownership, thus: 1) Occupation; 2) Law;
3) Donation; 4) Tradition; 5) Intellectual Creation; 6) Prescription and 7) Succession. We will focus on the
fifth mode, which is, acquiring ownership through intellectual creations.

To illustrate, suppose Engr. Sean designed a car which uses a gas-saving device which lessen the
gasoline consumption by ninety percent, the patent of the said inventions belongs to Engr. Sean. Another
example is a painting made by an artist, books written by an author, a logo designed by a student and
programs written by a programmer, newspaper articles, PowerPoint presentations, theses and
dissertations. These are considered as intellectual creations.

The Intellectual Property (RA 8293)

With regard to legal aspects of computing, the intellectual property code contains the most
important provisions concerning ICT professionals including computer and electronic engineers. Other
law which govern the use of technology such as the E-Commerce Law, Access Devices Regulation Act the
and Cybercrime Law generally contain the norms and proper usage of technologies and penalize those
who shall disobey. The intellectual property code, on the other hand, contains provisions which protect
the rights of authors, inventors, programmers and other gifted citizens regarding their intellectual
creations.

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Under the Republic Act 8293, otherwise known as the Intellectual Property Code of the
Philippines, the terms “Intellectual property rights” consists of (a) Copyright and related rights ; (b)
Trademarks and Service Marks; (c) Geographic Indications; (d) Industrial Designs; (e) Patents (f) Layout
designs and (g) Protection of Undisclosed Information.

From the above intellectual property rights, this chapter will deal more on patents and copyrights
since programmers and other ICT professionals are concerned more on these two intellectual property
rights.

What is Intellectual Property?

It is term used to describe works of the mind – such as art, books, films, formulas, inventions,
music, and processes – that are distinct and owned or created by a single person or group. Intellectual
property is protected through copyright, patent, and trade secret laws.

Copyright law protects authored works, such as art, books, films and music; patent law protects
inventions and trade secret law helps safeguard information that is critical to an organization’s success.
Together, copyright, patent, and trade secret legislation form a complex body of law that addresses the
ownership of intellectual property. Such laws can also present potential ethical problems for IT companies
and users. For example, some innovations believe that copyrights, patents and trade secret stifle
creativity by making it harder to build on the ideas of others. Meanwhile, the owners of intellectual
property want to control and receive compensation for the use of intellectual property.

A trade secret was defined as business information that represents something of economic value,
has required effort or cost to develop, has some degree of uniqueness or novelty, is generally unknown
to the public and is kept confidential.

Most Common Intellectual Property

Trademark, copyright and patents are the most common intellectual property rights.

Trademark, copyright and patents are different intellectual property rights that cannot be
interchanged with one another. A trademark is 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. In relation thereto, a trade name means the name or designation identifying or distinguishing
an enterprise. Meanwhile, the scope of a copyright is confined to literary and artistic domain protected
from the moment of their creation. Patentable inventions, on the other hand, refer to any technical
solution of a problem in any field of human activity which is new, involves an inventive step and is
industrially applicable.

A trademark is a logo, package, design, phrase, sound, or word that enables a consumer to
differentiate one company’s products from another’s. consumers often cannot examine goods or services
to determine their quality or source, so instead they rely on the labels attached to the products. Law gives
the trademark’s owner the right to prevent others from using the same mark or a confusingly similar mark
on a product’s label.

A patent is a grant of a property right issued to an inventor. A patent permits its owner to exclude
the public from making, using, or selling a protected invention, and it allows for legal action against

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violators. Unlike a copyright, a patent prevents independent creation as well as copying. Even if someone
else invents the same item independently and with no prior knowledge of the patent holder’s invention,
the second inventor is excluded from using the patented device without permission of the original patent
holder.

A copyright is the author’s legal ownership of his or her original intellectual creations in the
literary and artistic domains.

Infringement

Obviously, violations involving trademark is called trademark infringement; for copyright,

copyright infringement and for patent, patent infringement.

Trademark infringement is a violation of the exclusive rights attached to a trademark without the
authorization of the trademark owner or any licenses.

Copyright infringement (colloquially referred to as piracy) is the use of works protected by

copyright law without permission for a usage where such permission is required, thereby infringing certain
exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or
perform the protected work.

Patent infringement, or the violation of the rights secured by the owner of a patent, occurs when
someone makes unauthorized use of another’s patent.

Ownership of Copyright

Copyright is synonymous to economic rights which entitle the owner the exclusive rights to
carry out, authorize or prevent the following acts:

1. Reproduction of the work or substantial portion of the work;

2. Dramatization, translation, adaptation, abridgment, arrangements or other transformation of
the work;
3. The first public distribution of the original and each copy of the work by sale or other forms of
transfer of ownership;
4. Rental of the original copy of an audiovisual or cinematographic work, a work embodied in a
sound recording, a computer program, a compilation of data and other materials or a musical
work in graphic form, irrespective of the ownership of the original or the copy which is the
subject of the rental;
5. Public display of the original or a copy of the work;
6. Public performance of the work; and
7. Other communication to the public of the work (Sec. 5, P.D. No. 59a)

Illustration:

Question: Can Tabako University restrain their programmer Andrei, from using the system he developed
originally for them so that Marlboro University and others cannot use them?

Answer:

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Under the Intellectual Property Law, particularly Section 178.3 (b), the copyright belongs to the
Tabako, the employer because Andrei, the programmer-employee developed the said system as a result
of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. This
provision of the law only resolves the copyright ownership issue of the source code, between the
programmer and his employer.

In view of the above provision of the law, Tabako University can restrain Andrei from using the
system he originally developed for them. However, the next question could be, “who cares to use that
system of Tabako?” Practically, only Tabako can use the system because it is tailored fit for them. In other
words, only Tabako can practically use them.

No matter how flexible the system is being designed, there would, and will always be, some
permanent features of the system which will be useless, impractical and incompatible to other business
enterprises. Come to think of it, despite the similarities of their operations, McDonalds and Jollibee are
not using the same system.

A more practical question should be, “Can Tabako University or any copyright holder of a source
code restraints Andrei and others from developing a system which has the same features as that of their
copyrighted source code?”

Only the expression of an idea is protected by copyright, not the idea itself. Thus, even if Tabako
is the owner of the copyright of the source code, the same could have referred only to the code itself. It
could NOT have possibly stretched out to include the system generated by other source code whose
algorithm is NOT the same or identical to some other copyrighted source code.

Now you may ask, what is the extent of copyright protection? How can Andrei and others be held
liable for copyright infringement with regard to source code owned by Tabako University?

With the same legal basis, if Andrei reprinted the source code owned by Tabako University for
sale to the public without license from Tabako, then no doubt Andrei would have been guilty of copyright
infringement. In addition, if the copyrighted source code of Tabako, without any modification is compiled
by Andrei, that will constitute copyright infringement because the object file which will be translated into
an executable file will surely contain information that the system is license only to Tabako University.

Can the Employer Demand as a Matter or Right the Source Code of the System Developed by His
Programmer-Employee?

As a general rule, YES, because he is the copyright owner of the source code. This rule, however,
admits an exception, that is, when there is an agreement that the programmer-employee shall own the
copyright of the source code.

Bear in mind that Sec. 178.3 deals with the ownership of the copyright. The agreement
mentioned in this section is not about whether the programmer may or may not share the source code.
The agreement is about the ownership of the source code. However, as a consequence, is there is an
agreement that the programmer-employee shall own the copyright of the source code, the programmer
can deny his employer a copy of the source code.

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If the contract is silent, the general rule will apply, that is, the employer shall own the source code.
If the programmer resigns, at least, the employer can still have the option to continue and/or improve the
system. This will NOT be possible if the programmer will keep its program or source code.

If the Employee as Able to Develop or Design a Patentable Inventions During the Course of his
Employment Using the Facilities and Materials of His Employer, Who Shall Own the Patent?

Section 30.2 reads:

In case the employee made the invention in the course of his employment contract, the patent shall
belong to:

a) The employee, if the inventive activity is not a part of his regular duties even if the employee uses
the time, facilities and materials of the employer.
b) The employer, if the invention is the result of the performance of his regularly-assigned duties,
unless there is an agreement, express or implied, to the contrary.

The answer is similar to the of copyright ownership. Here, the determining factor is whether or
not the inventive activity is part of the regular duties of the employee. If it is NOT, then the employee
owns the patent notwithstanding the fact, that he uses the facilities and materials of the employer.

If the inventive activity is part of the employee’s regularly assigned duties, then the patent shall
belong to the employer, UNLESS there is an agreement to the contrary, express or implied.

If a person commissioned a programmer to design a system for him where there is NO employer-
employee relationship, is the rule of copyright ownership the same?

The rule is NOT the same. If there is an employer-employee relationship the copyright and the
work both belongs to the employer, unless there is an agreement, express or implied, to the contrary.

If there is NO employer-employee relationship, the person who commissioned the work shall have
the ownership of the work, BUT the COPYRIGHT thereto shall remain with the creator, unless there is a
written stipulation to the contrary.

Reproduction of a Computer Program

No matter how much we take good care of our CDs or other forms of storage devices which
contain software (computer program), it may incur defects and may be subject to a hardware failure. For
this reason, the IPC allows the lawful owner the reproduction of one (1) back-up copy of a computer
program without the authorization of the author or, or other owner of copyright: Provided the copy of
the adaptation is necessary for:

a) The use of the computer program in conjunction with a computer for the purpose, and to the
extent, for which the computer program has been obtained; and
b) Archival purposes, and for the replacement of the lawfully owned copy of the computer
program in the event that the lawfully obtained copy of the computer program is lost, destroyed
or rendered unusable.

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Take note that it is only the lawful owner who is authorized by law to make a back-up copy of his
licensed copy of the software. The lawful owner is the one who acquires the product from the authorized
distributor of the product.

Are Computer Programs Considered as Trade Secret?

A trade secret is 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. The definition also extends to a
secret formula or process not patented, but known only to certain individuals using it in compounding
some article of trade having a commercial value.

So, 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.

Generally, programs are NOT “trade secret”. However, this rule admits of an exception. To
illustrate:

If Andrei is an employee of Microsoft Corporation whose main task is to develop and maintain
programs for Microsoft, the source code shall be considered as a “trade secret”. Only Microsoft
Corporation can improve its current software because it is the only person, along with its employees, who
have the source code for Microsoft’s products. If the source code will be illegally revealed to others, the
exclusivity of the source will be lost and hence, will adversely affect eh business of Microsoft.

Copyright Infringement and Plagiarism Distinguished

Copyright infringement is within the area 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. A good example is the
unauthorized reproduction of a copyrighted work and selling it for a lower price.

Plagiarism is the act of taking credit for someone else work. Plagiarism is passing off as your own
somebody else’s ideas or words.

In plagiarism, the culprit claimed the work as his. If the culprit reproduced the copyrighted work
which he plagiarized, he is now guilty of both plagiarism and copyright infringement.

Plagiarism

Plagiarism is the act of stealing someone’s ideas or words and passing them off as one’s own. The
explosion of electronic content and the growth of the Web have made it easy to cut and paste paragraphs
into term papers and other documents without proper citation or quotation marks.

According to the Merriam-Webster online dictionary,” to plagiarize” means:

• to steal and pass off (the ideas or words of another) as one’s own
• to use (another’s production) without crediting the source

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• to commit literary theft

• to present as new and original idea or product derived from an existing source

In other words, plagiarism is an act of fraud. It involves both stealing someone else’s work and
lying about it afterward.

• But can words and ideas really be stolen?

According to U.S. law, the answer is YES. The expression of original ideas is considered intellectual
property and is protected by copyright laws, just like original inventions. Almost all forms of expression
fall under copyright protection as long as they are recorded in some way (such as a book or a computer
file).

All of the following are considered plagiarism:

• turning in someone else’s work as your own

• copying words or ideas from someone else without giving credit
• failing to put quotation marks in quotations
• giving incorrect information about the source of a quotation
• changing words but copying the sentence structure of a source without giving credit
• copying so many words or ideas from a source that it makes up the majority of your work whether
you give credit or not

Most cases of plagiarism can be avoided, however, by citing sources. Simply acknowledging that
certain material has been borrowed and providing your audience with the information necessary to find
that source is usually enough to prevent plagiarism.

What about images, videos, and music?

Using an image, video or piece of music in a work you have produced without receiving proper
permission or providing appropriate citation is plagiarism. The following activities are very common in
today’s society. Despite their popularity, they still count as plagiarism.

• Copying media (especially images) from other websites to paste them into your own papers or
websites
• Making a video using footage from other’s videos or using copyrighted music as part of the
soundtrack
• Performing another person’ copyrighted music (i.e. playing a cover)
• Composing a piece of music that borrows heavily from another composition

Certainly, these media pose situations in which it can be challenging to determine whether or not
the copyright of a work are being violated. For example:

• A photograph or scan of a copyrighted image (for example, using a photograph of a book cover to
represent that book on one’s website)
• Recording audio or video in which copyrighted music or vide is playing in the background
• Re-creating a visual work in the same medium (for example: shooting a photograph that uses the

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same composition and subject matter as someone else’s photograph)

• Re-creating a visual work in a different medium (for example, making painting that closely
resembles another person’s photograph)
• Re-mixing or altering copyrighted images, video or audio, even if done so in an original way)

The legality of these situations, and others would be dependent upon the intent and context
within which they are produced. The two safest approaches to take in regards to these situations are:

1. Avoid them altogether

2. Confirm the work’s usage permission and cite them properly

Is plagiarism against the law?

Although plagiarism is not a criminal or civil offense, plagiarism is illegal, if it infringes an author’s
intellectual property rights, including copyright or trademark. The owner of a copyright can sue a
plagiarizer in court for copyright violation.

Software Piracy

Software piracy is a term used to describe the act of illegally using, copying or distributing
software without ownership or legal rights (Computer Hope, 2019).

Types of Software Piracy (According to NortonLifeLock)

Counterfeiting
This type of piracy is the illegal duplication, distribution and/or sale of copyrighted material with the intent
of imitating the copyrighted product. In the case of packaged software, it is common to find counterfeit
copies of the compact discs incorporating the software programs, as well as related packaging, manuals,
license agreements, labels, registration cards and security features.

Internet Piracy
This occurs when software is downloaded from the Internet. The same purchasing rules apply to online
software purchases as for those bought in compact disc format. Common Internet piracy techniques are:

• Websites that make software available for free download or in exchange for others
• Internet auction sites that offer counterfeit or out-of-channel software
• Peer-to-peer networks that enable unauthorized transfer of copyrighted programs

End User Piracy

This occurs when an individual reproduces copies of software without authorization. These include:

• Using one licensed copy to install a program on multiple computers

• Copying discs for installation or distribution
• Taking advantage of upgrade offers without having a legal copy of the version to be upgraded
• Acquiring academic or other restricted or non-retail software without a proper license
• Swapping discs in or outside the workplace

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Client-Server Overuse
This type of piracy occurs when too many users on a network are using a central copy of a program at
the same time. If you have a local-area network and install programs on the server for several people to
use, you have to be sure your license entitles you to do so. If you have more users than allowed by the
license, that's "overuse."

Hard-Disk Loading
This occurs when a business sells new computers with illegal copies of software loaded onto the hard
disks to make the purchase of the machines more attractive.

References:

Laviña, Charlemagne G. et.al. (2012). Ethics for I.T. Professionals with Legal Aspects in Computing.
Mindshapers Co., Inc.
NortonLifeLock (2020). Types of Piracy. Retrieved from
https://www.nortonlifelock.com/about/legal/anti-piracy/types-piracy
Reynolds, George W. (2013). Principles of Ethics in Information Technology. Fourth Edition. Cengage
Learning.
Turnitin (2017, May 18). What is Plagiarism. Retrieved from https://www.
https://www.plagiarism.org/article/what-is-plagiarism