Intellectual Property Rights

Grid service provisioning is a nascent market. As a result, the tension between the interests of one entrepreneur (individual profit from licensing his or her intellectual property rights) and the industry as a whole (rapid dissemination and free use of the technology through the adoption of open standards) will greatly affect the future development in the market. The principal IPR considerations are set out below.

Copyright

One should distinguish between the copyright implications that may arise due to the use of a specific technology and the possibilities that are available for entrepreneurs active in the grid for profiting through the marketing of their intellectual property rights in the software developed for the provision of grid services. As far as the first issue is concerned, we should mention that grid technology is, due to its digital networked nature, prone to possible copyright infringements, since every attempt to send copyrighted information over the grid fabric may automatically results in an electronic copying of the work. While the law provides for some exceptions to the rights of the copyright holder, the present regulatory provisions are not sufficient to immunise the provider of the grid network and/or grid services against copyright violations. It follows that the partners need to acquire the permission of copyright owners, so that the copyrighted material can be stored, copied and processed in the various grid elements. As far as the possibilities of securing the protection of computer programmes as valid copyrighted material, we should mention that copyrightability of software depends on whether the specific programme is characterised as original (‘in the sense that it constitutes the author’s own intellectual creation’). This is a factual evaluation, although, one could argue that the given prerequisite is admittedly met by most independently developed code. If third party software is used in the context of grid services, licensing issues between the owner of the programme and the grid partners have to be addressed, explicitly taking into account the intricacies of grid architectures (e.g. avoiding the ‘per-CPU’ licensing model).

Databases

With regard to databases, the European legislator has acknowledged that they should be protected both under copyright legislation (if they are considered original in terms of their structure or arrangement) and under a separate sui generic right (if they represent a substantive investment for their maker). Although grid databases constitute an essential part in the deployment of grid service provision scenarios, it is arguable that they are eligible for protection under copyright or the sui generic right, because they fail to meet the respective legislative prerequisites. Still, there could be cases where this aforementioned finding may be reversed.

Grid and patents

With regard to patentability of grid-based software, in the light of the case law of the European Patent Office we can say that programs for computer can be patented if, when running on a computer, they cause a further technical effect going beyond the normal interaction between software and hardware (e.g., where the program serves to control a technical process or governs the operation of a technical device).

For a more detailed analysis please see: Parrilli, Davide Maria,Software Patentability in a Grid Environment (September 29, 2008). Available at SSRN: http://ssrn.com/abstract=1275227

Security and trade secrets

While technical measures should be taken to ensure that sensitive information remains hidden, it is necessary to take into account the civil and criminal liability that may arise when such information is disclosed, either by a breach of an obligation of confidence, or through the acquisition of the information by improper or surreptitious means (hacking). While the first case is handled mostly by the national legislation of the Member States, the European Convention on Cybercrime includes dedicated provisions that ensure the penal punishment of the industrial spy.

Licensing

Licensing is perceived both as an enabler/prerequisite for the proper functioning of a grid network (when licenses should be required by third parties) and also as an opportunity for profit for various actors in the grid value network. With regard to the first group of licenses, there are some interesting questions arising in cases where the outcome is based on the use of various software elements that are licensed under different terms (e.g. open source software and proprietary software) in the different layers (resource/hardware, middleware, service provision, application etc). With regard to the second group, it is important that the grid partners explicitly decide on the ownership of the results of the service provision. This refers both to the development of ‘glue’ software and also to the data created as the result of the provision of grid services (e.g. the results of task performed in the context of grid services).

SOFTWARE LICENSE AGREEMENT Template

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This material is taken from the document "Report on Relevant Intellectual Property Rights Issues" produced by the BEinGRID project.