Intellectual property rights

You have the legal right to protect the creations of your intellect, such as inventions, artistic and literary works, designs and symbols, and names and images used in commerce. The rights you have over these creations are intellectual property rights, which are protected by law through patents, copyright, and trademarks, for example. These protections allow you as a creator and an inventor to be recognised and financially benefit from your creations.

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through Intellectual Property Rights (IPR), has become one of the predominant issues in the Internet governance debate.

 

Copyright protects the expression of an idea when it is materialised in various forms, such as a book, a CD, or a computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.

The copyright regime has closely followed the evolution of technology. Every new invention, such as the printing press, radio, and television, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Internet to more complex activities, such as the mass distribution of music and video materials online.

The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of copyright law.

Amend existing copyright mechanisms or develop new ones?

How should copyright mechanisms be adjusted to reflect the profound changes brought on by ICT and the Internet? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulations, mainly consisting of measures to ‘dematerialise’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was utilised in major international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.

However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’, but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.

Protection of the public interest – the ‘fair use’ of copyright materials

Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being, while respecting the authors in question. Practically speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.

Copyright and development

Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool to participate in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.

Trademarks are relevant to the Internet because of the registration of domain names. In the early phases of the development of the Internet, the registration of domain names was on a first come, first served basis. This led to cybersquatting, the practice of registering names of companies and later selling those names to the companies in question at a higher price.

Mechanisms for the protection of trademarks

This situation compelled the business sector to place the protection of trademarks at the centre of Internet governance reforms in the early years of the Web. When the Internet Corporation for Assigned Names and Numbers (ICANN) was created,the US government demanded that the organisation develop and implement a mechanism for the protection of trademarks in the field of domain names. Soon after its formation, ICANN introduced the WIPO‑developed Universal Dispute Resolution Procedure (UDRP).

The UDRP is now the primary dispute resolution mechanism for domain names. It is followed by all ICANN-accredited registrars (entities through which individuals register domain names) in the case of generic top-level domains (gTLDs) (e.g. .com, .org, .net, .ngo, .blog, etc). Some operators of country code top-level domains (ccTLDs) (such as .tv for Tuvalu and .ws for Samoa). In brief, the UDRP specifies that most types of trademark-based domain name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name.

When ICANN introduced the New gTLD Program in 2012 (thus allowing the introduction of new gTLDs in addition to the 22 existing at that moment), additional rights protection mechanisms were put in place. One example is the Trademark Clearinghouse, designed to function as a global repository of trademark data. In one example of how the Clearinghouse is used, trademark holders can register their trademarks with the Clearinghouse and then receive a notification when a domain name matching the trademark is registered.

In 2016, ICANN committed to performing a review of all rights protection mechanisms before launching any further gTLD expansions. The next gTLD expansion will likely happen in 2022.

A patent grants protection to an author of an invention, whether it is a product or a process. Patent protection has to last at least 20 years (longer depending on the type of patent) from the date the patent application was filed. For a patent to be granted, an invention must be new, it must be an ‘inventive step’ (i.e. it must not be obvious), and it must have ‘industrial applicability’ (i.e. it must be useful).

Patents are relevant to the Internet mostly in regard to methods of doing business online, especially in e-commerce (such as Amazon’s 1-click shopping button).

However, with the onset of artificial intelligence (AI), patent offices around the world are trying to establish how to deal with inventions that are not the result of human creativity, but rather that are invented by AI. For example, the five largest Intellectual property offices, known as the IP5, which handle about 85% of the patent applications worldwide (the Korean Intellectual Property Office (KIPO), European Patent Office (EPO), Japan Patent Office (JPO), China National Intellectual Property Administration (CNIPA), and United States Patent and Trademark Office (USPTO)) agreed in 2019 to launch a New Emerging Technologies/Artificial Intelligence Task Force to appropriately respond to and explore initiatives related to global technological developments.