Author: Raneem Alfaleh, LLM program in International commercial law at the City University of London, 2021-2022, e-mail: [email protected]
Editor: Elnur Karimov, LLD (Doctoral Program in Law) at Kyushu University, 2021-2024, e-mail: [email protected]
Abstract
The recent advances in technology have pushed us to overview how intellectual property and copyright law has been used to legally address the changes in digital technologies. This article aims to briefly discuss whether copyright law suffices in its present form with advanced digital technologies. The author found that the current legislations in the Western world need to take further action as the disconnect between the technological pace and regulation is a case of concern. Therefore, bringing a suitable law would be logical and proportionate.
Keywords: Intellectual property; Copyright; 3D printing; Digital platforms.
Introduction
Intellectual property (IP) rights are becoming the subject of national and international studies, as the global economy in both developed and developing countries become increasingly innovative. Copyright, in particular, may be a significant motivator of innovation inside national economies.[1]
Given the essentially rights-based nature of IP, the inclusion of the word ‘property’ in the phrase ‘intellectual property’ appears reasonable. However, the usage of this term is not without debate. Detractors of the term generally base their arguments on the standard definition of ‘property’.[2] According to Richard Stallman, founder of the Free Software Foundation, the term ‘property’ has been misused to allow for a more favourable conceptual grasp of what the term ‘intellectual property’ genuinely ascribes.[3] It is stated to have been done in support of enhanced rights for IP holders, and the phrase is used widely beyond the scope that is essentially meant to allude.[4]
There are several types of IP protection, such as patents, copyright, and trademarks. Copyright was first established in England in 1710. The Copyright Act established the notion of a work’s creator as the copyright owner and defined terms of protection.[5] According to the Oxford English Dictionary, copyright can be defined as ‘[t]he exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.’[6]
‘Technology’ has been described in the Oxford Dictionary as ‘the branch of knowledge dealing with the practical applications of the mechanical arts and the applied sciences.’[7]
The influence of digital platforms on IP and copyright law
IP and copyright in the digital era
The advancement of digital technologies that use the Internet to produce, store, and process data has the potential to disrupt the global economy.[8] To illustrate, the development of digital technologies is reshaping all forms of global flow, including that of products, services, money, and people. This transition is still in its preliminary stages,[9] but people all over the world are already engaging in immediate cross-border exchanges of digital products, ranging from books, music, and design files to the 3D printing of tangible objects.[10] Moreover, the advancement of artificial intelligence (AI) and the rising relevance of new creative and transformative technologies such as 3D-printing raise concerns about the sufficiency of copyright law in its current form.[11] Because the 3D-printing creates art, music, and literature on its own and autonomously, with little or no human intervention.[12]
Consequently, technology is there to make things more accessible, faster, and cheaper. Regarding that, the Copyright Act faces major issues to protect any possible copying or compensate damages to IP. The Copyright Act is primarily concerned with the fact that the technological environment brings more and more infringement of intellectual materials online, whereas the Copyright Act does not give adequate ways to deal with such infringements.[13] Moreover, the Internet has posed a number of questions about the applicability of private international law to IP concerns.[14] To illustrate, the widespread use of IP on the Internet is enabled by Information technology (particularly digitalization). For example, the term ‘IP’ can be applied to works that form the content of Internet resources, or to computer programs that give form to the Internet’s comprehensive technological structure and ‘mode of operation’.[15] As a result, no action is possible on the Internet without dealing with IP issues.
How might copyright law align with the advances in digital technologies?
As digitalization increases, it cannot be ignored that new technologies diminish the importance of distance, whether in geographical, linguistic, or regulatory terms.[16] However, it has also brought challenges to copyright law.[17] In the past, digital technologies have complicated the enforcement of copyright legislation in the US. Three elements contribute to this conclusion.
First, with the emergence of new digital systems, copyright infringements may become more common, due to privacy concerns, and public acceptance of illicit copying. This will make it more difficult to enforce the existing copyright laws.
Second, given the privacy interests at stake, these infringements will be difficult to discover. As unauthorized digital copies are sufficiently identical to originals that even a copyright holder would be confused. The possessor would have a difficult time distinguishing between approved and illegitimate copies. Because of this commonality, the chances of discovery are considerably reduced, as well as evidence of infringement.
Third, the existing public views about intellectual property law will continue to impede enforcement. As one of the greatest obstacles is the attitude of the public towards copyright law. Furthermore, Americans are accustomed to recording copyrighted content, and surveys show that the general public considers some illicit copying to be acceptable behaviour. [18]
Despite that, there is the significant global integration of IP systems, such as the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) of 1886,[19] the General Agreement on Tariffs and Trade[20], which addressed the need to begin drafting rules to control commerce in a world that was becoming rapidly digitalized[21], the TRIPS Agreement[22] which has been critical to the promotion of commerce in knowledge and innovation, resolution of trade disputes over IP, and ensuring freedom for WTO members to pursue their domestic policy objectives.
Therefore, copyright law should be brought up in the future by implementing the law that can ensure a fair balance between protecting human invention and incentivizing the development of machine-learning technologies to adapt to any technological change at present and in the future.[23]
Conclusion
To summarize, it is questionable whether copyright law suffices in its present form, given that copyright law is a drawback and not kept in pace with digital technology. In this sense, legislation must be adapted to meet the latest requirements as technology continues to advance. Therefore, the author concludes that there is a need for further work and regulations from governments by establishing a real measure in order to fill the gap between the advances in technology and copyright law.
Bibliography
Primary Sources
Agreement on Trade-Related Aspects of Intellectual Property Rights (unamended) (the TRIPS Agreement), Annex DC of the Marrakesh Agreement Establishing the World Trade Organisation 1994 https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm accessed 9 January 2022
(A brief history of copyright) <https://www.iprightsoffice.org/copyright_history/> accessed October 31, 2022
Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)
Secondary Sources
Bonadio E, Lucchi N and Mazziotti G, “Will Technology-Aided Creativity Force Us to Rethink Copyright’s Fundamentals? Highlights from the Platform Economy and Artificial Intelligence” (SSRNSeptember 1, 2022) <https://m5.gs/UTk1Qm> accessed October 31, 2022
Chu J, ‘When Property Does Not Mean Property: An Analysis of the Existence of International Intellectual Property’ (2011) 39 International Journal of Legal Information 328
“Fleischmann E, “UIC John Marshall Journal of Information Technology & Privacy Law” <https://repository.law.uic.edu/cgi/viewcontent.cgi?httpsredir=1&article=1452&context=jitpl> accessed October 31, 2022
Gachago R, “The Effect of Technology on Copyright” (Academia.edu October 11, 2018) <https://www.academia.edu/37567515/The_Effect_of_Technology_on_Copyright> accessed October 31, 2022.
Rotstein E, ‘Is There an International Intellectual Property System? Is There an Agreement between States as to What the Objectives of Intellectual Property Should Be?’ (2011) 33(1) European Intellectual Property Review 1
“Impact of Digital Technology on Copyright Law” (Legal Service India – Law, Lawyers and Legal Resources) <https://www.legalserviceindia.com/legal/article-6892-impact-of-digital-technology-on-copyright-law.html> accessed October 31, 2022
“Impact of Digital Technology on Copyright Law” (Legal Service India – Law, Lawyers and Legal Resources) <https://www.legalserviceindia.com/legal/article-6892-impact-of-digital-technology-on-copyright-law.html> accessed October 31, 2022
“The Influence of New Technologies on Copyright” (Rm.coe.int) <https://rm.coe.int/> accessed October 31, 2022
Saumya, “Impact of Digital Technologies on Legal Issue Copyright with Respect to Indian Copyright Law” (JudicateMeJuly 27, 2021) <https://judicateme.com/impact-of-digital-technologies-on-legal-issue-copyright-with-respect-to-indian-copyright-law/> accessed October 31, 2022
“The Effect of Technology on Copyright” (Academia.edu October 11, 2018) <https://www.academia.edu/37567515/The_Effect_of_Technology_on_Copyright?email_work_card=view-paper> accessed October 31, 2022
World Trade Organization, ‘TRIPS — Trade-Related Aspects of Intellectual Property Rights’ (WTO, 2021) <https://www.wto.org/english/tratop_e/trips_e/trips_e.htm> accessed 31 October 2022
WTO, ‘World Trade Report 2018’ (World Trade Organization, 2018) <https://www.wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf> accessed 31 October 2022
Footnotes
[1] E Richard Gold and others, ‘The Unexamined Assumptions of Intellectual Property’ (2004) 18 Public Affairs Quarterly 299.
[2] Jonathan Chu, ‘When Property Does Not Mean Property: An Analysis of the Existence of International Intellectual Property’ (2011) 39 International Journal of Legal Information 328.
[3] ibid.
[4] ibid.
[5] “A Brief History of Copyright” (A brief history of copyright) <https://iprightsoffice.org/copyright_history/> accessed October 31, 2022
[6] Gachago R, “The Effect of Technology on Copyright” (Academia.edu October 11, 2018) <https://www.academia.edu/37567515/The_Effect_of_Technology_on_Copyright> accessed October 31, 2022.
[7] ibid
[8] WTO, ‘World Trade Report 2018’ (World Trade Organization, 2018)
<https://www.wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf > accessed 31 October 2022.
[9] Susan Lund and James Manyika, ‘The E15 Initiative: Strengthening the Global Trade and Investment System for Sustainable Development’ (McKinsey & Company, January 2016) <http://e15initiative.org/wp-content/uploads/2015/09/E15-Digital-Lund-and-Manyika.pdfhttp://e15initiative.org/wp-content/uploads/2015/09/E15-Digital-Lund-and-Manyika.pdf> accessed 31 October 2022.’.
[10] Ibid.
[11] Impact of digital technology on Copyright Law Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-6892-impact-of-digital-technology-on-copyright-law.html (Accessed: October 31, 2022).
[12] Bonadio E, Lucchi N and Mazziotti G, “Will Technology-Aided Creativity Force Us to Rethink Copyright’s Fundamentals? Highlights from the Platform Economy and Artificial Intelligence” https://link.springer.com/article/10.1007/s40319-022-01213-7 accessed November 3, 2022.
[13] Ibid.
[14] E Rotstein, ‘Is There an International Intellectual Property System? Is There an Agreement between States as to What the Objectives of Intellectual Property Should Be?’ (2011) 33(1) European Intellectual Property Review 1.
[15] Elena Leanovich, ‘Intellectual Property Rights on the Internet: Private International Law Questions in Belarus’ (Colloquium Papers, WIPO-WTO 2018).
[16] WTO, ‘World Trade Report 2018’ (World Trade Organization, 2018)
<https://www.wto.org/english/res_e/publications_e/world_trade_report18_e_under_embargo.pdf> accessed 31 October 2022.
[17] Impact of digital technology on Copyright Law Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-6892-impact-of-digital-technology-on-copyright-law.html (Accessed: October 31, 2022).
[18] Fleischmann E, “UIC John Marshall Journal of Information Technology & Privacy Law” <https://repository.law.uic.edu/cgi/viewcontent.cgi?httpsredir=1&article=1452&context=jitpl> accessed October 31, 2022.
[19] (amended in 1979) WIPO <https://wipolex.wipo.int/en/treaties/textdetails/12214> accessed 31 October 2022.
[20] General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194 art XX (entered into force 1 January 1948)
[21] Arindrajit Basu, ‘Can the WTO Build Consensus on Digital Trade?’ (Hinrich Foundation, 5 October 2021) <https://www.hinrichfoundation.com/research/article/wto/can-the-wto-build-consensus-on-digital-trade/> accessed 31 October 2022.
[22] World Trade Organization, ‘TRIPS — Trade-Related Aspects of Intellectual Property Rights’ (WTO, 2021) <https://www.wto.org/english/tratop_e/trips_e/trips_e.htm> accessed 31 October 2022.
[23] Elena Leanovich, ‘Intellectual Property Rights on the Internet: Private International Law Questions in Belarus’ (Colloquium Papers, WIPO-WTO 2018).
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