New trends and technologies always raise questions about intellectual property (IP). In the past, the focus was on the introduction of telephony, the possibility of film and music recording, and the advent of the internet. Today, it is topics such as the internet of things (IoT) and blockchain that are keeping IP experts busy.
In the age of digitalisation, the question arises as to how the intellectual property system can support and adequately protect technological progress, and whether these new technologies cannot contribute to improving the IP system itself.
The following topics highlight some current developments relevant to IP.
Robotics have been used for decades to automate human activities, whether in product manufacturing or as domestic support in the home. These robots, which previously were only mechanical, have recently been combined with artificial intelligence (AI); in other words, with computer systems that carry out activities normally requiring human intelligence. A good example of this is artificial speech recognition.
This provides many opportunities in the field of IP, whether as intelligent support for a patent application or when searching for brand logos that already exist. Nevertheless, this also poses new challenges for the existing IP system, such as how to protect objects of art created with the help of AI, for example. Whether such a creation can be protected at all by copyright needs clarification, while questions concerning the ownership of what has been created also arise with regard to patent law. Is it possible for an inventor to foresee what the AI will do? Who is then the holder of the IP rights? Can AI actually be a legal entity? Could this even lead to the creation of an ‘electronic person’ (similar to a legal or natural person)?
Modern technologies simplify the generation and collection of huge amounts of data. For example, an autonomous car generates up to one gigabyte of data per minute (Telekom, 2018). This wealth of weakly structured, complex information, which can no longer be evaluated with conventional tools, is referred to as ‘big data’.
Data cannot be physically touched and is therefore intangible. So the question arises as to whether its extraction, storage and use are subject to similar phenomena as is the case with other intangible goods (e.g. inventions or works of art). For example, the market for inventions does not function optimally, which justifies it being regulated. The extent to which regulation is also necessary for the data market is controversial, however. Previous studies have shown that generally, there is no shortage of the supply of data, but also that data markets may not function optimally due to market power. For more information on this topic, see our website page on access to non-personal data in the private sector.
The internet of things (IoT) includes all technologies that link real objects with one other using communication technology and data exchange, which in turn enables access to the said objects. For example, the IoT includes the ‘smart’ refrigerator, which notifies the owner when they are running low on milk, for instance; or wearables, which are sensors sewn into clothing that change the song playing on your smartphone when you move your arm. As a result, the IoT integrates a multitude of technologies – some of which are patented – into simple objects (in a ‘smart’ refrigerator, for example, sensors for measuring the milk level, sensors for monitoring whether the refrigerator door is closed, and technology for connecting them to a smartphone). This makes it difficult to estimate how many licences are needed for the use of an IoT application, to whom the licencing fees must be paid, and how high these fees should be. To simplify this task, which can be highly complex in individual cases, new mechanisms are needed to efficiently pay the royalties to the respective holders.
Augmented reality (AR) is the perception of the real environment enriched with digital content. For this, special glasses can be used to save additional elements over real objects and thus be integrated into the filmed or photographed environment (e.g. Pokémon Go or Snapchat).
The area of conflict between AR and IP is particularly evident in trade mark and copyright protection. On the one hand, new technology offers opportunities to access the environment in a completely new way. On the other, however, it must be clarified who owns the rights to the image and film material that form the basis for AR – the person photographing or filming, or the software producer? It is also unclear whether and from when the use of trade marks or copyrighted creations in virtual space can be punished as an offence.
Virtual reality (VR) completely replaces the real environment by means of special glasses and is used for virtual tours, games and events. A completely new reality is simulated through non-transparent glasses containing screens.
Similar to augmented reality (AR), trade mark and copyright protection is also at the forefront of VR. The allocation of rights to use and modify photos or films for VR tours (e.g. a virtual walk through Paris) is a good example of this. Should virtual access to public places be guaranteed in the sense of ‘freedom of the panorama’? Additional problems arise with regard to designing and disseminating virtual objects and avatars (user representation in virtual space). Some IP rights are already being transferred within the virtual world; for example, it is possible to buy imaginary branded items in a game. As a result, it must be discussed whether and to what extent IP law in the real world can be transferred to the virtual world.
A ‘blockchain’ can be thought of as a virtual register, whereby not only the data it contains is recorded in the register, but also its changes. The register is then encrypted and stored decentrally, i.e. on all user computers participating in the blockchain. Due to this multiple storage, no subsequent changes can be made to the data blocks, which guarantees a high level of security and makes the use of central intermediaries (e.g. banks) obsolete.
Blockchains are a useful tool in the field of intellectual property. For example, because of their unambiguous dating, they can be used as a basis for proof of manufacture. They can also be used to digitally manage and enforce intellectual property rights or to conclude licences and pay fees in real time. These possibilities can lead to efficiency gains in the fight against trade mark and product piracy, or the fair distribution of royalties in the music industry. However, before it can be used, it must be clarified whether blockchain technology meets the security requirements of sensitive data.
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"
Conference on intellectual property law – industrial data sharing, 7 June 2022
EPO/IPI - invitation to a free public online seminar on patenting topics in green tech