Articles filed under Intellectual property

One wet Sunday afternoon I was playing with an interface to OpenAI’s machine learning model, GPT-2, which was trained to predict the next word in a sentence and which can now generate articles of synthetic text based on a sentence provided to it. I typed, “Can AI own the copyright in the work that it has generated?” After a little pause, I would like to say for thought, the AI provided some text which did not make redundant the writing of this article but nevertheless was grammatically correct and very readable. It ended with a flourish saying, “and that is a philosophical, not a legal, question.”

Amusing, but increasingly and sometimes disconcertingly “human”, AI is now part of our daily lives. It finishes our sentences (for example, Gmail’s SmartCompose), it finds the information we need on a myriad of topics (think of Alexa and other voice assistants) and it curates the ads and news we view online [Note 1]. It is also doing things which we think of as being the exclusive reserve of humans; it is creating art works and writing music.

Not only that, but it is also very “clever”. DeepMind’s neural network, AlphaGo Zero, taught itself the complex game of Go and after three days beat its predecessor, AlphaGo, which had itself beaten the 18-times world champion. Other AI models are helping scientists discover new drugs and develop innovations in clean energy.

This raises interesting questions for intellectual property (“IP”). When AI writes an article, paints a picture or creates some music, who owns the resulting copyright in the work? When AI develops a new idea which might be patentable, who owns the invention?

The new EU copyright law that copyright lawyers, artists, management and media companies have been waiting for was passed on 17 April 2019 as Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. The directive is not law as is (although some of its provisions are mandatory); most of its provisions will have to pass into the local law of member states by 2021. Other provisions will need to be implemented by 2022.

The diverse cultural differences across EU member states will mean its implementation is likely to be different across the EU.

Copyright law is being challenged by disruptive technologies such as AI and blockchain, themes addressed in the recently published 5th edition of the author’s book Digital Copyright, on which this article is based.

trade mark

In the previous issue of the Newsletter, Jordan Furlong highlighted how artificial intelligence and expert systems are being deployed in law firms, and will transform the legal industry. One implication of this is that law firms will be “marketing themselves as enterprises whose value and identities are independent of their lawyers”.

If you’re minded to follow Jordan’s advice and focus your marketing efforts on building your law firm brand rather than the brand of individual star lawyers within the firm, then you’ve probably got ambitions for your law business. It makes sense, therefore, to find out about protecting your intellectual property.

Every law firm or barrister’s chamber will have intellectual property to protect, although the actions to take will be different depending on the business, the intellectual property involved, and the aspirations for the business.

liminality

I’ve always liked the word “liminality” – a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK’s current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission’s significant proposals for copyright reform have been greeted in the UK. The Proposal for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming, if adopted, will represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

Despite the UK Government commissioning the Hargreaves Review of Intellectual Property and Growth in 2010 to ensure the UK has an IP framework best suited to supporting innovation and promoting economic growth in the digital age, there is still a marked lack of awareness in the business community about intellectual property and what it means.

Digitalisation is creating new rules for many industries, and challenging business models. The impact of the internet on intellectual property law is substantial, making the subject relevant to all businesses not just for those in the creative industries.

One of the decisions that website owners often need to make these days is whether to allow people to add comments or other content to their website. Of itself, this isn’t a legal issue, but a decision to allow comments or other user content on a website does give rise to legal considerations. These considerations may be relevant to you if, for example, you run or are thinking of setting up a legal blog or forum. They may also be relevant to you if you act for clients on website-related matters.

If you allow others to post content to your site, three broad issues arise:

  • whether you need to obtain a licence to re-use content posted to your site by others for purposes other than reproduction on the site itself (eg you might want to publish helpful comments in an ebook);
  • whether to moderate content and, if so, when; and
  • how to protect yourself from liability arising from material posted to your site that infringes third party rights.

Interflora v Marks & Spencer

Should you bid on a competitor’s trade mark in AdWords? This is a simple question, but not one that has a simple answer.

The High Court ruled in 2013 that you should not, as doing so would amount to a trade mark infringement.

The case before the court involved Marks & Spencer and Interflora. M&S had made an AdWords bid on the name “Interflora”. Users who searched that name were given results that directed them to M&S’s flower delivery service. Interflora claimed that this was an instance of trade mark infringement. The judge agreed, saying the adverts may lead the average well-informed internet user to think that M&S was a member of Interflora’s network.

As simple as it is to find images online, one could be forgiven for thinking it is just as easy to know which images may be used. Unfortunately, the complexities of copyright law and the limited awareness of its rules can make the process of finding and using images a potential minefield for businesses. No matter how widely used and well known an image may be, if it is still subject to copyright it is not within the public domain, which means you need permission to use it. And fair-dealing defences to infringement are typically narrower than might be expected.

Tools such as TinEye or Google’s search by image mean it has never been easier for copyright owners to discover infringing uses of their images online. So, it is imperative to take precautions, and seek legal advice when using images, particularly online.

Copyright is the property right the law gives authors/creators and those taking ownership from them to control the copying and other forms of exploitation of their creations or “works”. The traditional view is that copyright arose out of lobbying by printers to prevent the piracy of their books. So in one sense it was a response by vested economic interests to the growth of a new technology. The first UK copyright statute dates back to 1709. The current statute, the Copyright, Designs and Patents Act (“CDPA”), dates from 1988. A lot may have changed in 300 years or so but it remains the case that those who exploit their creativity (or that of others) continue to use copyright to fight a battle against piracy and the pirates become ever more sophisticated in their approach.

Digitisation is yet another new technology copyright is coming to terms with.

The problem with a lot of the debate about copyright is that it becomes polarised. It’s “big media” v the “little guy”. It’s “closed copyright, a barrier to innovation” v “open internet, cultural advancement and freedom of expression”. It’s bad guy, good guy.

It’s also not unusual to read that the absence of a “fair use” doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation. No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian species, capable of adapting to the network. However, if we are going to move into a more nuanced debate, I think it’s worth making four basic points.

The copyright “paradox”

Copyright works, created by professionals and amateurs alike, are ubiquitous on the network, on social media platforms, websites and online services. In June this year, the Intellectual Property Office (IPO) and Imperial College published new estimates of investment in the UK’s copyright industries, of which the publishing industry is a significant part. When adopted in the National Accounts this adds more than £3 billion to the economy.