This article was originally published by The Lawyer’s Daily, (www.thelawyersdaily.ca) a division of LexisNexis Canada.”
Author: Marsha S. Cadogan | 3 min read
What is the relationship between emerging technologies and intellectual property (IP)? Innovations in emerging technologies often bring new products to market, create differentiated services, or change how consumers interact with existing products and services. IP intersect with emerging technologies in various ways, some of which are more significant than others. This note is an overview of some of the more substantial ways that IP intersects with emerging technologies, and how in turn this may influence trends in global IP law and governance.
Emerging technologies are a staple of innovation age. They are advanced technologies, built on new or existing technological know how and are meant to replace or change how things are done in our every day lives. More well-known examples of emerging technologies include artificial intelligence, machine learning and robotics, blockchain and distributed ledger technologies and 3D printing.
Intersections between IP and emerging technologies
Artificial intelligence (AI), machine learning and robotics can be used to develop artistic creations such as digital art, music, communication interfaces such as chatbots, and to help in aspects of manufacturing or distribution processes. Some of these AI-based creations may be copyright registrable, if the criteria for copyright protection is met. One ongoing legal debate is whether, and to what extent AI-based creations should be protected under copyright laws. The originality of the work is often not the issue, but whether computers, or technology can have authorship in works. Under existing copyright laws, going even as far back as the Berne Convention for the Protection of Literary and Artistic Works, authorship in copyrighted works have vested in humans. As technological innovation continues across the globe, computer generated creations will likely be an ongoing trend. A recent copyright case in China shows the need for clarity on copyright authorship in computer-generated works. A Beijing Court held that a software program was the original author of a data-base compilation but found that no copyright could be attributed to the program since copyright only subsist in natural persons. Currently, at the multi-lateral IP governance level, (specifically the World Intellectual Property Organization) there are ongoing discussions of how AI-generated works should be treated under copyright law.
How about patent rights and emerging technologies? Patents provide inventors with a period of 20 years (based on jurisdiction) of exclusive right in the making, selling, use, leasing or otherwise of novel technological inventions. AI, robotic inventions and blockchain platforms may be patentable, protecting the technological know-how used to create these inventions. These inventions are plus points in building a culture of sustainable innovation in Canada, especially where further research and development in the area leads to worthwhile improvements on existing patented technology.
In terms of trademarks, a solid trademark strategy can be used to distinguish a high technology’s brand from that of another in consumer markets. As the emerging technology space becomes crowded, the relevance of a sound trademark strategy will likely become more obvious.
But there is more…: emerging technology is slowly changing aspects of the practice and application of IP law as we know it. These intersectionalities are more concerned with IP management, or the use of emerging technologies to manage existing IP rights. For instance, in the blockchain and distributed ledger technology space, there are enterprises using or developing platforms to assist rightsholders in protecting their intellectual property. These platforms are used to help the IP litigation process by providing relevant record-keeping transactional time-stamped data about when a registration occurred. This information can be used to defend or initiate infringement claims (such as registration and first use information about copyrights and trademarks). By verifying relevant transactions along a product’s value chain, blockchain technology may make it easier for counterfeits to be identified and dealt with in infringement claims. There is also a role for blockchain and distributed ledger technology in in authenticating the provenance of goods.
Some of the developments in the blockchain space may allow parties to conduct specific IP transactions without the need for IP lawyers to be part of the proceedings. For example, smart contracts can be used within a blockchain system to facilitate trademark registrations at a comparatively lower cost than traditional legal services. These aspects of the technology are still developing. Smart contracts are self executing programs within a blockchain that conclude a transaction between parties if certain conditions are met.
What next? More questions than answers
These intersections may be progressive but are not without their challenges. Going forward, two of the more pressing issues are (i) the framework and institutional capacity that economies have in place to facilitate sound relationships between IP and emerging technologies. This includes legal, business and capital resources, and how well the right partnerships can be arranged between different public and private networks to achieve beneficial outcomes. Another related challenge is how to deal with big data that is generated from the use of technology in the space. Are privacy laws sufficient, or what role can copyright laws or related legislation play in the emerging technology space? The second point is this: (ii) whether and, if so, what types of IP reforms are needed at the international level to safeguard the integrity of the IP system in the technology age. One question that may need to be answered is whether revisions to the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property (TRIPS) is needed to account for relationships between IP and emerging technologies.
Overall, many of these issues are complex but are still worthwhile considerations in developing solid connections between IP and emerging technologies.