Intellectual Property Law Research Articles

Legal regulation of the participation of artificial intelligence and other generators in the process of creating results comparable to works

In the modern world, some components of legal relations that do not have legal personality — animals, technical devices, artificial intelligence systems — are able to generate results comparable to works. However, neither regulation of this process, nor legal protection regime of its results are provided in international treaties, and are established less than fragmentary in national law. In this regard, the following questions arise: are the results of the activities of the listed components protected under copyright law and who exactly is the author of such results — the owner of the animal/device/technology, or the direct creator of the result, who is not a human being. A general term “generators of results comparable to the results of intellectual activity” is introduced into the doctrinal turnover, by which it is proposed to understand a component of a legal relation that does not have legal personality in accordance with the law of modern states — animals, technical devices, artificial intelligence, etc., — which, participating in process, partly comparable to human creative activity, are capable of producing (generating) results comparable to objects protected by intellectual property law, in particular, works. Up to date, the idea of generators as objects, not subjects of law, has not been shaken, and copyrights are not granted to them. In view of the possible commercial and artistic value of the results of their “creativity,” it may be advisable to establish a special protection regime without granting anyone non-property (moral) rights, however, with the recognition of all or some of the property rights in the created object for the generator’s proprietor for a reduced period of time.

Trading Repaired and Refurbished Goods: How Sustainable is EU Exhaustion of Trade Marks?

Abstract Analysing EU, Benelux and German case law, this article examines whether the exhaustion doctrine in trade mark law contributes to a more sustainable economy. It considers that ecological motives seem not to have played a role either in the policy choice against international exhaustion, or in the Court of Justice of the European Union (CJEU) case law on legitimate reasons and the repackaging of medication. Although exhaustion could, theoretically, incentivise traders to give new life to goods that were legitimately marketed before, the analysis shows that this is a risky business because of the thin and blurry line between lawful renewal activities and creating a false impression of affiliation. As such, it is unclear to what extent de-branding, re-branding, and co-branding can prevent liability for infringement, although co-branding renewed products is probably often the only way to do so. As an alternative to buy–renew–resell, traders could consider providing renewal services. On closer analysis, however, offering services puts them in an even less favourable position, and this seems hard to justify. In addition to trade mark rights, copyright and/or design rights will often cumulatively apply to mark-bearing products. Although the latter rights are also subject to a principle of exhaustion, the effects of exhaustion can de facto be overruled by the exception for legitimate reasons proper to trade mark law. Moreover, it is argued that repair exceptions in copyright and design legislation have limited effect and that announced legislative reforms are unlikely to change that. The unattractiveness of renewal businesses is further aggravated by the recurrent use of open norms and references to common practices. It is concluded that IP laws often leave it to the discretion of rightholders whether to offer sustainable post-sale solutions. Besides having clearer guidance on what is allowed, this paper suggests that exhaustion case law should take sustainability arguments into account, for instance by considering what would happen to goods if they were not renewed by the trader. To a large extent, the judiciary already has tools at its disposal to incorporate these kinds of elements.

Emergence of Digitalization and Artificial Intelligence in the Intellectual Property System

This paper was set to address to what extent intellectual property law is prepared for keeping pace with the rapid development of artificial intelligence and digitalization? We examined, by way of using empirical methods, the relationship between artificial intelligence, its regulation and the current trends in intellectual works. The overall conclusion of our research findings demonstrates that current legislation is well suited to support the requirements of technological progress. Nevertheless, there are some new dimensions in terms of worthy proposals that may also be considered. This paper stresses that given AI is capable of bringing significant transformations in our daily lives about, a major paradigm shift in legislation may soon be inevitably required.

Regulating Gatekeeper Artificial Intelligence and Data: Transparency, Access and Fairness under the Digital Markets Act, the General Data Protection Regulation and Beyond

AbstractArtificial intelligence (AI) is not only increasingly being used in business and administration contexts, but a race for its regulation is also underway, with the European Union (EU) spearheading the efforts. Contrary to existing literature, this article suggests that the most far-reaching and effective EU rules for AI applications in the digital economy will not be contained in the proposed AI Act, but in the Digital Markets Act (DMA). We analyse the impact of the DMA and related EU acts on AI models and underlying data across four key areas: disclosure requirements; the regulation of AI training data; access rules; and the regime for fair rankings. We demonstrate that fairness, under the DMA, goes beyond traditionally protected categories of non-discrimination law on which scholarship at the intersection of AI and law has focused on. Rather, we draw on competition law and the FRAND criteria known from intellectual property law to interpret and refine the DMA provisions on fair rankings. Moreover, we show how, based on Court of Justice of the European Union jurisprudence, a coherent interpretation of the concept of non-discrimination in both traditional non-discrimination and competition law may be found. The final section sketches out proposals for a comprehensive framework of transparency, access and fairness under the DMA and beyond.

Legal Disruption and Sharia Arbitration: Navigating Change, Measuring Impact, and Fostering Innovation

This article evaluates the doctrinal challenges encountered by the law amid technological advancements, specifically in the areas of blockchain technology, smart contracts, digital assets, and data privacy. Certain conventional legal doctrines, including intellectual property law, privacy, and evidence, and the principle of nonrefoulement, may no longer be applicable amidst the introduction of disruptive technological developments. We present methods for identifying irrelevant legal issues using the TRIZ approach, which enables the identification, evaluation, and updating of legal doctrine. Additionally, this article illustrates how TRIZ principles can develop more adaptable contract principles in response to technologies such as smart contracts. By applying these principles, the law can more effectively manage change, promote innovation in consumer protection, and support the use of smart contracts.

The Intersection of AI and Intellectual Property Law: Navigating Legal Frontiers

The Intersection of AI and Intellectual Property Law: Navigating Legal Frontiers

Building Global Health Solidarity in a Permacrisis: Legal Impacts of a Pandemic Treaty

Covid-19 has revealed the urgent need for global solidarity in an era of interconnected crises (permacrisis). The World Health Organization (WHO) aims to improve pandemic prevention, preparedness and response through a ‘convention, agreement or another international instrument under the constitution of WHO’ (‘pandemic treaty’). This study analyses shortcomings in global health solidarity during Covid-19, investigates legal impacts of the pandemic treaty and navigates the arguments for and against a pandemic treaty. The treaty’s potential legal implications for human rights, intellectual property law, tort law, global health law, competition law and public procurement are examined, as well as some challenges to its implementation. The treaty’s success depends on overcoming differences and learning from global failure in order to prepare better for the next pandemic. The pandemic treaty must ensure equity, transparency, accountability and human rights while facilitating access to vaccines and other pandemic-related products, especially for low- and middle-income countries.

Copyright policy and the Nigerian music industry in the era of digitalisation

Abstract The booming Nigerian music industry is having a tremendous impact on the global music scene, but at the local level it is beset by difficulties brought about by copyright enforcement. The very vibrancy of this industry is attested through numerous kinds of sonic outputs amidst the ongoing process of digitalisation, especially as evidenced by the current mainstream youth-driven hip-hop hybrid music genre known as ‘Afrobeats’. However, insufficient attention has been given by scholars to the availability, or lack, of spaces for independent and/or emerging artists to create songs outside the tight control of copyright and intellectual property laws. This is especially true for musicians who produce ‘digital mixes’. One issue that comes up rather often in reference to the production and consumption of music in this heavily regulated internet-era context is piracy, which, though ethically problematic, has nevertheless persisted in the absence of meaningful ways to allow independent and emerging artists the freedom to ply their trade.

Problems and Legal Protection of Art Works in Non-Fungible Token (NTF) Practices

This article analyzes the Non-Fungible Token, abbreviated NFT, which is a digital certificate that can be used to verify who owns certain assets in the world of crypto art, where this certificate represents ownership of authentic works of art. Non-Fungible Token (NFT) as a digital asset as well as several legal issues that arise related to NFTs, especially in the field of intellectual property law including copyright protection and legal construction of copyright ownership of NFTs. This study uses a normative legal research method with a statutory approach. This study aims to find out how the legal problems in the practice of intellectual property development commercialization of non-fungible tokens (NFT) and how to protect works of art in the form of Indonesian non-fungible tokens (NFT). The results of this study indicate that although in Indonesia there are no specific regulations that explicitly regulate Non-Fungible Tokens (NFT), the rights of creators of works are generally protected by Law Number 28 of 2014 concerning Copyright, but from an intellectual point of view property development, NFT presents the potential for the development and commercialization of works through digital media that has a wide reach and provides more optimal monetization opportunities.

NFTs and the Legal Landscape -A New Frontier in Intellectual Property, Digital Ownership, Financial Crime, Collective Organisations and Consumer Protectio

In the ever-evolving digital landscape, Non-Fungible Tokens (NFTs) have emerged as a disruptive force, challenging the traditional paradigms of digital asset ownership and control. As Fortnow and Terry aptly highlight, NFTs seek to redefine the relationship between creatives, users, and digital artwork, a relationship historically dominated by powerful online intermediaries operating under the access model [1].The prevailing access model, underpinned by a blend of technological, legal, and market dynamics, has largely curtailed the ability of creators and individual internet users to exert meaningful control over digital assets. Instead, these assets are predominantly governed by centralized intermediaries, offering seemingly unlimited access. While this model boasts advantages, such as a robust rights management system ensuring IP security and user convenience [4], it is not without its criticisms. The most glaring concern for creators is the 'value gap' -the disparity between the value generated by intermediaries and the compensation received by content creators [3]. This concern was so profound that it catalysed significant reforms in the EU's digital platform regulations in the form of the DSM Directive and, most recently, the DSA Act [2].Centralized intermediaries, with their overarching influence, have not only skewed the value distribution but have also left users vulnerable. The tentative nature of access rights means users can be deprived of their digital assets without warning, rendering them powerless against potential misuse by these intermediaries [5].This special issue of the journal underscores the profound impact of NFTs on Intellectual Property law. We are privileged to feature contributions that delve deep into this relationship from diverse legal perspectives. Dr. Ioanna Lapatoura offers a compelling analysis of the intricate relationship between NFTs and trademark law, using the MetaBirkins case as a focal point. Daniel Becker and Aylton Gonçalves, on the other hand, explore the implications of NFTs within the Brazilian legal framework. However, the legal ramifications of NFTs extend beyond IP law. In that context, Matteo Alessandro challenges traditional notions of property in light of NFTs, while Marica Ciantar examines the transformative potential of NFTs and Decentralized Autonomous Organizations (DAOs) in reshaping collective organizational governance. Prof. Dr.Yulia S. Kharitonova exploredlegal issues of decentralized services in the context of utility NFTs. J.-G. A. Hanneman researched DAOs and AI-based Smart Contracts. The darker aspects of NFT transactions are also addressed, with Ass Prof. Dr. Dimitrios Kafteranis, Dr. Huseyin Unozkan and Prof. Dr. Umut Turksen elucidating their alignment with financial crime regulations. Moreover, the discourse on NFTs in private law is expanded upon by Dr. Elena Tzoulia, who highlights their intersection with the secondary digital consumer protection acquis in the EU.This issue serves as a testament to the multifaceted legal challenges and opportunities presented by NFTs. Through the insightful contributions of our esteemed authors, we hope to foster a deeper understanding and stimulate further discourse on this pivotal topic.

THE US “METABIRKINS” CASE IN THE LIGHT OF EU IP AND CONSUMER PROTECTION LAW

In early 2023 a United States (US) court ruled that a crypto art collection named “Metabirkins”, depictingthe famous “Birkin” bag of Hermès, infringedtrademark rights. This ruling conferred Hermès the power to ban the commercial exploitation of Metabirkins by their designer, through a permanent injunction order. By the time that order was issued, however, several Metabirkins had already been sold to third parties. Taking this case as a point of reference, thispaper examinescrypto art transactions from the perspective of EU intellectual property (IP) and consumer protection law. First, it clarifies the conditions under which the purchasers and licensees of Non-Fungible Tokens (NFTs) fall under the consumer concept. Then, it examines whether the critical facts would constitute a trademark infringement in the EU, and what would have been the impact of such an infringement on the rightful use of the NFTs by their right-holders. Finally, the paper discussesDirective 2019/770 in protectingconsumersand itsapplicability in the blockchain ecosystem.

Legal protection of computer programs as an object of intellectual property

The article highlights the concept of “computer program” and defines the essence of legal protection of computer programs as objects of intellectual property law. Foreign and domestic legislation regarding the legal protection of computer programs as objects of intellectual property law has been studied. It has been found that in many countries of the world, computer programs are recognized as objects of both copyright and patent protection, if all conditions of patentability (novelty, inventive step, industrial applicability) are met. The problems of legal protection of a computer program as an object of copyright using the trade secret regime are revealed. The issue of legal responsibility for violation of the protection of computer programs as objects of intellectual property law is analyzed. The expediency of applying a comprehensive approach to the protection of computer programs as an object of copyright has been determined.

Copyright as Credit Collateral in Legal Perspective: Evidence from Indonesia

Objective: There are two main points in this legal research: (1) to analyze the legal problem of copyright as credit collateral in Indonesia (2) and to compare copyright law arrangement in South Korea. Method: This study uses normative legal research. The legal documents used are South Korean and Indonesian copyright laws and regulations. Utilizing techniques from literature studies, the procedure of gathering legal materials is carried out. Results: There are still issues with the regulation and application of the law in Indonesia, particularly in relation to the issue of valuation and appraisal for the liquidation of intellectual property law (hereafter referred to Indonesia language as HKI) because there isn't a secondary market, the legal infrastructure mechanism for executing HKI is unclear. Conclusions: In contrast to Indonesia, South Korea itself has rules and regulations for copyright assessment that have been supported by the South Korean Government, such as having a special panel of judges that exclusively handles HKI disputes, copyright collection agencies in South Korea have trusteeship agreement with copyright holders so that their copyrights are transferred to copyright collection agencies as trust property. This legal problem occurs because the implementation of regulations in Indonesia still overlaps, so that the implementing rules are still not optimal.

White interference, bad collaborations and new norms in Indigenous art: Can intellectual property law reforms fix this?

Indigenous art has had longstanding issues with Australian copyright law, including the issue of collaborations in Indigenous art. In 2023, a related issue concerning allegations of ‘white interference’ surfaced. Those allegations highlighted the problem of forming ethical collaborations in the Indigenous arts industry relying on existing law. Partnerships between Indigenous and non-Indigenous people to produce art have also been validly made leading to collaborations known as the ‘new norm'. This article explores white interference, bad collaborations, and new norms in Indigenous art. It analyses existing legal protections and those proposed by IP Australia, the Productivity Commission, and a Parliamentary Standing Committee aimed at protecting communal Indigenous Knowledge and the rights of Indigenous artists.

The Conflict and Coordination Between Data Sharing and Intellectual Property Protection in the Era of Big Data

Computer technology has constantly innovated since the computer first appeared in the last century. Cloud computing, the Internet, and other technologies are increasingly important in human life. Relying on the combination of computers and the Internet, the scale of data is increasing rapidly, the speed of data exchange is gradually accelerating, and the traditional information exchange mode is broken. The information exchange mode based on extensive data exchange has steadily become the mainstream, and the era of big data has come. Due to the changes brought about by new technologies, the original intellectual property law can no longer cope with new problems. How to solve the conflict between data exchange and intellectual property protection in the era of big data has become a vital issue. This paper focuses on the analysis of the connotation of data exchange in the age of big data, the conflict with intellectual property rights, and how to coordinate the contradiction between the two; it explains the conflict of property rights and personal rights brought about by extensive data exchange, and blends the scale, content, and technology of intellectual property rights in extensive data exchange. This paper aims to discuss the boundary of extensive data exchange and intellectual property protection, balance social interests, alleviate social contradictions, and provide feasible ideas for renewing intellectual property rights.

General Provisions of Intellectual Property Rights in Ukraine

The article is devoted to the study of the general provisions of intellectual property law in Ukraine. The article notes that the importance of protecting property rights in the intellectual sphere has been growing rapidly in recent decades. A theoretical and practical understanding of the nature of intellectual property rights was carried out based on the analysis of current legislation and available scientific, methodical and journalistic materials. The list of laws that regulate activities in the field of intellectual property, both at the national and international level, is given. It is interesting to note that in Ukraine there are quite a lot of special legislative acts regulating the above activities. Attention is focused on the adaptation of Ukrainian legislation to the legal system of the European Union. International legal acts regulating the protection of intellectual property rights are given. Scientific and regulatory approaches to defining the concept of intellectual property rights are considered. It is established that this concept can be considered in two ways: objective and subjective. In an objective sense, in the legal literature, intellectual property law is considered as a system of legal norms that regulates homogeneous social relations in the field of intellectual property. In a subjective sense, the right of intellectual property is considered as personal property and non-property rights of natural persons, which according to the current legislation belong to the authors for the results of intellectual activity. Special attention is paid to the interpretation of the concepts of property and non-property intellectual property rights. Property intellectual property is the author's rights to the results obtained from his creative activity, similar to the property rights of those who create material objects with their labor (devices, devices, mechanisms, new information technologies, etc.). Non-property intellectual property rights are a set of moral, mental, rational, intellectual and other human rights, which by their nature cannot be alienated from the owner. A comparative analysis was made between intellectual property law and property law in general, and their relationship was also analyzed.

Legal regulation of non-property right to an image

Today, the image of a person occupies the core of the communication process, as it is present everywhere and there are a large number of uses of it every day, whether it is taken professionally or not, and there are countless cases where the image is sold and traded in exchange for money, as the right to an image is the right of the person who presents it to oppose the publication of his or her image and to sell it when necessary. Everyone has the right to an image, regardless of whether it is anonymous or famous. This right is governed by civil law and is therefore different from copyright (which is governed by intellectual property law). This article analyses the multiplicity of rights to images and the classic conflict between the right to an image and copyright. The author analyses the main mechanisms of legal protection of a person's image in certain jurisdictions, both within the civil law and common law tradition. The classical approach considers image rights as an external limitation of copyright, and therefore characterises the relationship between image rights and copyright as predominantly conflictual in nature.
 Nevertheless, one can also focus on the overlaps between the right to self-image and copyright, as both are intangible assets that combine both extra-patrimonial and patrimonial interests. In this respect, copyright can serve as a model for the possible creation of a European patrimonial right to the image. Although the idea of promoting the recognition or creation of a new intellectual property right to protect the economic attributes of a person's image in the national jurisdictions of EU Member States, inspired by the American right of publicity, is not new and has been put forward by doctrinal circles in both civil law and common law traditions, the new boundless realities of image dissemination and commercialisation, as well as the establishment of reliable protection for the dignified attributes of a person's image in the case law of the European Court of Human Rights, underline the need and possibility of constructing a European patrimonial right to one's own image. The unique prototype of copyright consisting of a synthesis of non-patrimonial and patrimonial interests can be used as a model for the construction of such a right.

Patents and unjustified threats—Legal solutions in Australia

AbstractWhile intellectual property laws protect rights holders from infringement of their intellectual property, these laws also protect against abuse of those rights where rights holders unjustifiably threaten competitors with infringement proceedings. The introduction of additional damages for flagrant unjustified threats under the recent Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) may benefit an alleged infringer who is not found to have infringed a valid patent. In particular, new section 128(1A) to the Patents Act 1990 allows additional damages to be awarded against a person for making blatant unjustified threats of infringing a patent. In cases where it is difficult to determine the loss and ordinary damages cannot be awarded, a court could award a nominal amount in compensation, but the difficulty lies in whether, in some cases, damages can be awarded at all. This raises the need to consider other legal avenues to address the issue of unjustified threats relating to patented inventions. In this paper we have identified four such other legal avenues being: specific provisions of the Australian Consumer Law; the misuse of market power provisions in s 46 Competition and Consumer Act 2010 (Cth); the duty of care and diligence in s 180 Corporations Act 2001 (Cth); and the law of joint tortfeasorship. Each of these potential legal solutions will be examined in turn however a comparison of remedies, or interactions with the laws of evidence, and exploration of costs are beyond the scope of this analysis. Further while we acknowledge that other Australian legislation provides a cause of action arising from the making of unjustifiable threats, such as in the Copyright Act 1968, the Trade Marks Act 1995, the Designs Act 2003 and the Circuit Layouts Act 1986, this paper is focused on the Patents Act 1990 only.

Cybercrime at the crypto-art market – types of crimes committed against NFT’s creators and owners

In this paper, the author aims to analyse the types of crimes committed in cyberspace against creators and owners of NFT. Non-fungible tokens have been favored by the art world (also known as the crypto-art market) for a few years now. They attract numerous digital art creators and cryptocurrency investors. The token is recorded in a blockchain and is used to certify authenticity and ownership. Therefore, the art world is particularly interested in this solution. However, as practice shows, NFT isn’t flawless, and cybercriminals exploit its flaws. Using methods known from typical cybercrimes, they modify their modus operandi accordingly to the crypto-art market practice. In this paper, the author describes examples of breaches of copyright and intellectual property law, as well as examples of the forgery of NFT. In addition, other crimes, such as fraud and theft of NFT, are described. Types of those crimes are, e.g., bypass security systems, phishing, and installation of malware

PROTECTION OF FICTIONAL CHARACTERS AGAINST FANFICTION ACTIONS AND ITS RELATION TO FAIR USE IN THE PERSPECTIVE OF COPYRIGHT LAW

This research aims to investigate the protection of fictional characters within the framework of intellectual property, including copyright, and explore the challenges arising from fanfiction cases in the era of the internet. Through legal analysis, the study delves into the legal regulations governing fictional characters and identifies the potential application of fair use principles to support fanfiction activities that utilize pre-existing fictional characters. The findings provide insights into the legal framework surrounding fictional characters within intellectual property law and its relevance in addressing the evolving landscape of internet culture. Moreover, this research contributes to a deeper understanding of how to safeguard fictional characters while considering freedom of expression and fostering innovation in the realm of creativity. By examining these issues, this study not only sheds light on the legal aspects of protecting fictional characters but also addresses the dynamic interplay between traditional intellectual property concepts and the transformative nature of fan-driven creativity on the internet, ultimately contributing to the ongoing discourse on the regulation of fictional characters in the digital age.