As technology develops rapidly, the way in which stakeholders protect and enforce their intellectual property (IP) is changing and will continue to change in the future, but how? And should existing IP laws and enforcement measures be amended to address those changes? These issues, among others, were discussed in the second edition of the ‘Intellectual Property Infringement and Enforcement Tech Watch Discussion Paper’ (see here), which was recently published by the European Union Intellectual Property Office (EUIPO). This Law-Now looks at some of the most significant findings and comments contained in the paper, in particular about the threats and challenges for IP that are posed by some of the emerging technologies analysed.
The second edition of the ‘Tech Watch Discussion Paper’, prepared by the European Observatory on Infringements of Intellectual Property Rights (with support from the Impact of Technology Expert Group), updates the first edition published in September 2020. It reviews the six technologies included in the first edition (namely Blockchain, Artificial Intelligence, Robotics, 3D Printing, Nanotech and Spatial Computing) and includes three new ones, Quantum Computing, Internet of Things (IoT) and 5G/6G Mobile Networking. It also considers the impact of these technologies on sustainable development and the need to address the challenges of climate change.
General significant points
The paper identifies a number of significant “horizontal” points that apply to all or most of the technologies.
For example, it was found that:
- “all the technologies raise questions about the protectability of innovation and creativity related to the technologies themselves: for example, the protectability of innovations involving artificial intelligence applications; of innovations and creations made by autonomous, artificial intelligent or quantum computing-based systems; of files used as a basis for 3D printing; of the datasets that are vital to all the technologies and their application; and the increasing importance of protection of trade secrets.”
The following “overall observation” was made:
- “all the technologies have already shown themselves to be important emerging and disruptive technologies impacting businesses, the economy, the environment, government administration and the daily lives of many people, and pose potential challenges and/or opportunities for IP.”
The paper discusses and analyses, for each technology, the potential challenges and/or opportunities for IP.
Threats and challenges for IP
Some of the most significant ‘threats and challenges for IP’ identified in the paper, in relation to a selection of the nine technologies reviewed, are discussed below.
In respect of 3D printing, it was noted that as the technology evolves and the quality of the materials increases, printed products may become almost identical to mass-manufactured versions. This could lead to increased IP infringement, especially with the dissemination of 3D printers able to print with gold, silver and other high-value materials. However, it was found that, for the time being, no amendments to the existing law and enforcement measures are required to deal with those infringements, as they are capable of being addressed under current legislation. Nevertheless, it was noted that some amendments, or maybe even a new type of IP right, might be needed in the case of the creation or modification of living organisms using nanotech or 3D printing.
Regarding Quantum Computing, while the report highlighted the risk of the technology giving criminals the ability to crack the encryption of credit card transactions in a short period, some of the experts pointed to the recent establishment of ‘quantum-proof encryption’, a powerful security tool to protect the system from wrongdoers. Moreover, the report also highlights the possible risk that the technology can be used to reverse engineer patented models. However, no amendments to existing IP laws or enforcement measures were suggested. The experts noted that it may be over a century before quantum computers become ubiquitous in the home. They also considered that, currently, it is difficult to identify any practical use of this technology for consumers.
The paper considers that the development of Artificial Intelligence (AI) technology poses numerous threats (but also opportunities) for IP. For example, it was noted that AI can be used to remove watermarks used to protect digital content, and for producing ‘smart imitations’, which means calculating the grey areas where an applicant can produce an infringing design or use a business identifier while avoiding liability. Regarding the threat posed by deepfake technology, it was estimated that as much as 90% of online content may be synthetically generated by 2026. Due to the impact of such technology on privacy and personal security, it was found that new categories of crime will have to be policed. Some experts believed that changes in legislation are likely to be required concerning the use of data in AI solutions. It was suggested that an updated legal environment that addresses AI challenges in various fields is needed, taking into account the rapid development of AI technology.
While the paper does not cover the metaverse directly (which will be analysed in the next edition), it contains a detailed discussion on Spatial Computing technology, i.e., Augmented Reality (AR), Mixed Reality (MR) and Virtual Reality (VR). For example, it was noted that the spatial computing market is still experimental and has not yet adopted or implemented specific DRM systems or anti-piracy protections (unlike video games, for instance). According to the experts, this lack of anticipation could be a problem, as it is always more difficult to fight against piracy after the event (rather than taking preventative measures before piracy spreads, which is preferable). It was also considered that, while everything can be manipulated by spatial computing (even patented products), trade marks, designs and copyrights will be most affected by possible copies using AR. To address the misuse of spatial computing technology, particularly for copyright infringement, it was suggested that the creation of a certification stamp for legitimate content may become a necessity, and that digital deposit systems could also prove useful. However, it was found that no new legislation is currently required to address the known possible uses of this technology.
The paper (all 90+ pages!) is an interesting and useful insight into the emerging and disruptive technologies in question, and their impact on the protection and enforcement of IP, among other things. The development of these technologies raises important - and in some cases complex – IP related issues, which need to be on the radar of any IP owner, especially in the tech space. As new technologies develop, infringements that were not previously possible or conceivable (such as the potential for existing works to be reproduced on an industrial scale by generative AI) will increasingly become the focus of enforcement activities. Now, more than ever, as subsistence and infringement of intellectual property is increasingly contingent on the specific mechanics of novel platforms and systems, the report makes clear that lawyers will need to be increasingly fluent in the technologies underpinning their client’s products and services.
As those IP related issues will continue to evolve in the future (in parallel with the development of the emerging technologies), it will be worth following the updated discussion and analysis that will be included in future editions of the paper, particularly given that, in some cases, the comments made by the experts could prompt legislative changes, at least at EU level.
Future editions will analyse additional important and emerging technologies, including the metaverse, big data, open-source intelligence (OSINT), climate change mitigating technologies, nuclear analytical techniques to counter criminal infiltration into the legitimate supply chain and new developments in cybersecurity. CMS will continue to monitor developments.
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