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Intellectual Property Law in the Digital Society: Challenges and Opportunities

The advent of digital technologies has indeed changed the world and our life. Many areas of today's reality are affected and among them intellectual property.

In the time of digital technology it has become possible to produce and disseminate copies of copyrighted works with a mouse click. This has increased the number of copyright violations as well as made IP rights enforcement more complex. Trademark owners got a new headache too – now they have to secure web-monitoring for potential trademark infringements in domain names and on Internet websites, to keep track on availability of new domain zones and fight cybersquatting. Also high tech developers do not have it easy – to mitigate a risk of accidentally infringing patent rights, companies (especially software developers) are forced to acquire rights to "defensive patents" as well as to spend time, effort and financial resources on fighting patent trolling.

On the top, the new times have brought to light tension between the interests of right holders and society's interest in innovative development.

Technical Protection Measures v. Fair Use

If copyright law cannot cope with the tasks imposed by new technology, technology itself comes as a tool to assist. There is an ongoing discussion that in near future the ability of technology to assist in the settlement of IP conflicts may lead to a situation where legal remedies become excessive.

Indeed technical means of IP protection may be very efficient. For instance, let us look at the technical solutions enabling libraries to "lend out" e-books remotely. In this example the books become available for a download on the reader's device but thanks to special technical measures, there is no possibility for a user to copy or print such books. Further, the books are automatically deleted from the reader's device upon expiration of "lend-out" period which imitates a return of books to the library. All this serves popularization of libraries and, if handled correctly, contributes to balance of interests of IP right holders and users.

When praising technical protection solutions, we need to simultaneously keep in mind that technical protection measures may sometime prevent or significantly limit use of copyrighted works. This may contradict to law provisions or established court practice on fair use (e.g. making a copy for personal use). For example, the wording of Russian law provision allowing an authorised user to require that the right holder eliminates restrictions around the use of copyrighted work that are set through technical protection measures is conditional on 1) technical possibility of removal of restrictions and 2) insignificance of right holder's efforts required for such removal. Clearly, such vague conditions do not promise smooth application of the fair use provision.

3D Printing Era

New technologies open the doors to wide-scale copying and the number of technical threats to the interests of copyright owners grows every day.

If widespread use of quantum computing is a future, the 3D printing is already our reality. It is well-known that 3D printers are capable of using a great number of raw materials: metal alloys, plastic, ceramics, food, paper, rubber, concrete, biomaterials – and this is not an exhaustive list. 3D printing provides possibilities for both rightholders and potential infringers in many high-tech creative and manufacturing industries, such as the automotive industry, aviation, consumer goods industry and medical services. By 2013 the 3D printing market was already worth of over 3 billion US dollars and according to current forecast it may grow up to 21 billion US dollars by 20201.

In this environment right holders require new assurances of IP protection by law and court practice. For example, copyright grants protection to the form of a work and protects the right holder from unauthorized copying thereof, unless the alleged violator proves that the alleged copy has in fact been created independently. A copyright owner may prove ownership of the digital files used for printing but a 3D scanner or modeling program may help a violator to undermine the copyright owner's strategy and to escape from liability under copyright law. As a reaction, IP right holders do not rely solely on copyright protection and where possible reach out to patent remedies or know-how protection, i.e. right holders are forced to use the full toolkit provided by IP law.

ISPs on Guard for the Right holders' Interests

Invisibility of infringers on the Internet is considered to be one of the top concerns for IP protection these days. The right holders face the difficulty of establishing identity of Internet users. Coincidence of IP addresses and even the presence of infringing content on the infringer's gadget may not always be indisputable evidence of infringement, since the violator might easily say that his computer was hacked or the IP address was illegally used by third parties.

In Russia right holders often reach out to ISPs through an extrajudicial procedure with a request to take measures aimed at terminating violations of IP rights on the Internet. Such requests must be supported by evidence of IP rights.

ISPs make efforts to address concerns of IP right holders and implement innovative technologies with the aim of reducing the amount of unauthorized content on their websites. The examples of such technologies are the Content ID system used by YouTube and the "digital fingerprint" system introduced by VKontakte. It is a right holder, however, who has a say on if the technology meets his interests in IP protection or not.

Some Procedural Issues

Among the procedural aspects influencing the effectiveness of IP rights protection in the digital environment is the question of whether a particular court has jurisdiction to resolve a case related to an IP violation committed on the Internet. By disseminating infringing content via the Internet the violator makes it available in anywhere in the world and, hence, violates IP laws in a number of states. The situation results in a jurisdictional issue: before which court should the right holder seek protection of IP rights? The same applies to the infringement of trademark rights on the Internet.

In cases concerning IP rights violations committed on the Internet, the court jurisdiction is regularly challenged by the defendant. Creation of uniform harmonized approaches to the issues of determination of jurisdiction would indeed give more certainty to IP right holders.

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As follows from the above, innovative technologies have greatly changed our world. Law and enforcement practice need to keep along. The digital world does not allow us to be slow and lax and lack of action on legislative or enforcement front may result in useless law provisions, unsatisfactory IP enforcement and, as a consequence, loss of incentives for creative activity. This could be prevented by developing law and enforcement practices and no doubt that proper changes would contribute to balance of interests of right holders and a wider society.