Can a mutually beneficial relationship exist between IP and IT?
This post discusses some of the tensions that exist between the increasing effort to enforce Intellectual Property Rights and the impact of the Internet.
Traditionally, Intellectual Property was only considered in the context of select fields, such as images, writing, music and inventions. However, in recent years, technology, and specifically the Internet, has been changing personal and social behaviour, the way we do business, and even the ways in which wealth is being created. This week, 23—27 April, the Jamaica Intellectual Property Organisation (JIPO) has been celebrating IP Week under the theme, “Nation Building through Creativity & Innovation: Maximising our IP Potential”. One of the activities, which was held yesterday, 26 April, was a seminar, “IP in the digital age”, which discussed the use of trademarks on the web, and navigating rights and disputes on the Internet.
The session was well attended, and participants got useful insight into how Intellectual Property is perceived online, as well as the protection they may, or may not have in Jamaica. However, an area that did not get much attention is the conflicts that currently exist between the Internet/online activity and Intellectual Property rights protection. This post shares some views on this matter.
What is IP?
Although most of us inherently have an idea of what Intellectual Property (IP) is, according to the World Intellectual Property Organisation (WIPO), it refers to “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce”.
For those who are the recognised owners IP, they enjoy a set of exclusive rights for their creations, which tend to be clearly prescribed in law. Depending on the country, there are generally four types of IP that are protected, which are described in Table 1.
Select challenges of IP and the Internet
Over the past 10—15 years in particular, the Internet has grown by leaps and bounds and is having a direct impact on all aspects of our lives. Due to its sheer pervasiveness – over 2.2 billion or 33% of the world’s population have access to the Internet as at 31 December 2011 (Source: Internet World Stats), it means that in principle, each individual user has the ability to reach every other person that has access to this resource. This potential is changing the way we interact with each other online, and offers a broad range of options through which we can share, earn and live.
Copyright infringement activities. However, one of the distinct challenges that has emerged, due to the relative anonymity and, to varying degrees, the absence of geographical borders the Internet affords, there are numerous opportunities to infringe on the IP rights of others for financial gain. As indicated in What do you need to know about the PROTECT IP Act?, developed countries are reportedly losing billions of dollars and thousands jobs due to copyright infringement activities that undermine a wide cross section of industries. Hence, in addition to the traditional IP legislation, countries worldwide, led by the United States, have been enacting ever more stringent laws to try to protect and enforce the rights of content creators.
Safe harbour. One of the key ways in which countries have sought to strengthen enforcement, is through safe harbour provisions. These provisions are designed to reduce or eliminate
…. a party’s liability under the law, on the condition that the party performed its actions in good faith or in compliance with defined standards. Legislators may include safe-harbor provisions to protect legitimate or excusable violations, or to incentivize the adoption of desirable practices… (Source: Wikipedia)
In the context of IP online, typically, the onus is placed on webhosts and online search engines, among others, to police the content they feed or process, and to proactively bar content that might be infringing on someone else’s IP right. Under safe harbour, these entities would enjoy immunity from prosecution, should it be subsequently proven an IP right had not been breached. However, at the same time, it can create a witch hunt-like environment, where information/content sharing activities, which are not being done for money or to misrepresent ownership of someone else’s work, become subject to those controls.
IP versus social media. The Internet and social media, in particular, have been fostering highly collaborative and sharing behaviour among users. Businesses, for example, have recognised that greater sales can be realised through personal recommendations, than through traditional advertising methods. Hence, they are keen for us to share our likes and opinions, through social media (such through blogs, video and photo sharing platforms, and social networks). However, those very businesses can be quite vociferous about intellectual property right infringement.
The above conflicts suggest that Internet users and IP owners are not fully reconciled on the impact of the Internet on IP. IP owners are often eager for the support of users in promoting their products, ideas, services online, still want to have almost exclusive control of how those activities are conducted, which often and inherently undermines the desire (and opportunity) to share. Hence although a mutually beneficial relationship between IP and IT can exist, there are still a number adjustments that ought to be made to better accommodate the changing paradigm that is occurring due to the Internet.