Free content in honour of the INTA 2020 Annual Meeting

In honour of the INTA 2020 Annual Meeting, OUP has made available some specially-selected free content. This features several JIPLP articles, along with chapters from key OUP books, including Copyright and the Court of Justice of the European Union by Eleonora Rosati and Enforcement of Intellectual Property Rights in Africa by Marius Schneider and Vanessa Ferguson. The featured content will be free to read until 7 December 2020, so do take a look! See here for more information! 

The Authors' Take - Meet My Artificially-Intelligent Virtual Self: Creative Avatars, Machine Learning, Smart Contracts and the Copyright Conundrum

Meet My Artificially-Intelligent Virtual Self: Creative Avatars, Machine Learning, Smart Contracts and the Copyright Conundrum 

by Eugene C Lim 

Artificial intelligence (AI) technologies have triggered a dramatic paradigm shift in how we conceive of authorship and creation. Intelligent machines, such as those powered by the new GPT-3 neural network technology, are capable of generating human-like creative expressions, composing text, performing translations and producing other creative outputs once thought to be beyond the ability of computers. 

This article focuses on intelligent applications (or “creative avatars”) that are programmed to replicate the style of a human author (such as Shakespeare, Rembrandt or J.K. Rowling), and the regulatory challenges flowing from the generation of such works. The challenges surrounding the production of such content relate not only to questions of ownership and authorship, but extend to issues of how, if at all, these works can be treated as copyrightable subject matter. 

While much of the literature in the field has proposed significant modifications to traditional copyright rules to accommodate the emergence of AI-generated content, this article highlights the limitations of relying on copyright law in regulating rights in AI-generated derivative works. In developing this argument, the article adopts a novel approach by suggesting that interim solutions, in the form of alternative business and technological models, can be found outside of the “copyright box”. In particular, the article proposes a consent-based contract framework, featuring digital watermarks, Creative Commons licences and blockchain technologies, as part of an interim solution to regulate rights in relation to works generated by “creative avatar” programs. It is suggested that existing contractual and technological tools, drawn from current practices in the software licensing and cryptocurrency industries, can be useful to stakeholders in the AI industry, especially in the early years of emerging neural network technologies. In this regard, the article offers a utilitarian justification for the proposed consent-based framework by explaining how it can help to facilitate the dissemination of AI-generated derivative works in the absence of clearly-defined copyright rules, and promote the eventual enrichment of the public domain. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

In conversation with... Etienne Sanz De Acedo

In conversation with… 

Etienne Sanz de Acedo, CEO of the International Trademark Association

 

In the first of a new series of conversations, I recently caught up with INTA’s CEO, Etienne Sanz de Acedo, to discuss plans for the upcoming virtual meeting and to hear Etienne’s thoughts on the current IP landscape and the Association’s key policy priorities. The background of the current pandemic was never far from our conversation, but Etienne, ever the optimist, was always keen to highlight opportunity and appears to be facing the situation with calm resolve. 

Consumer trust and behaviour and how these have evolved since the start of the pandemic were a key theme of our conversation. According to Etienne, internet usage is expected to rocket by 160% among new or low frequency users alone, whereas consumers are becoming more frugal in their consumption with a shift in focus towards home and family. The online marketplace will inevitably continue to grow, but consumers will increasingly seek to engage with transparent, fair and ethical suppliers – a major consideration for brand owners and their advisors. It seems that the pandemic is either exacerbating or accelerating trends that were already apparent, including increased consumer fatigue around certain brands and trade marks. Consumers are benefitting from better access to information, which is aiding their desire to interact with brands whose ethos lends itself to a relationship of trust and transparency. It is no longer enough for brands to be seen to talk; they also need to act.

We also discussed brand restrictions: advocating for the right of brand owners to use their trade marks and related IP rights where governments seek to prohibit, misappropriate or significantly restrict those rights. Tobacco plain packaging is the most obvious example, but this also now affects other products such as infant formula, and sugary snacks and beverages. There is unease that a desire to address public health concerns has led to unwanted side-effects, impinging on consumer choice, impeding market competition and, perhaps most worryingly, benefitting counterfeiting and other illegal trade. Such restrictions inevitably erode brand value and arguably restrict freedom of expression. Whilst proponents of such measures argue that their aims are beneficial in seeking to reduce exposure to and use of products and services conventionally deemed to be unhealthy, INTA maintains that legislation and regulation restricting branding and use of trade marks must be driven by clear and convincing evidence of efficacy. They support balanced regulation that addresses public health concerns whilst respecting private property rights.

And finally, the burning topic of the Annual Meeting: education, advocacy and business development form INTA’s DNA and the meeting plays a key part. This year would have marked the twentieth anniversary of my first INTA Annual Meeting in Denver, Colorado, in 2000. Sadly, the meeting planned for April in Singapore was not to be and the 2020 Annual Meeting will be held virtually in November. For me, the elephant in the room was always the question of how to tackle diverse time zones but, as Etienne explained, INTA has addressed this with a three-pronged approach. Sessions are mainly timed to start early in the morning on the US East Coast, allowing for the largest number of attendees to participate at a comfortable time. There will also be live sessions in China standard time zone in Mandarin and English, plus on demand sessions and “Watch Parties”, allowing registrants to view recorded sessions with interaction via live chat. 

 

I look forward to catching up with many familiar faces over the virtual platform and thank Etienne for taking the time to share his thoughts with our readers ahead of the meeting. As has been customary in previous years, OUP will soon be launching a free INTA collection of content, including several key articles from JIPLP, so keep an eye out!

 

Sarah Harris

Managing Editor, Journal of Intellectual Property Law & Practice

Reminder: JIPLP Special Issue on GIs

A few months ago we announced a Call for Articles for our forthcoming special issue on Geographical Indications (GIs), which will be published in 2021.

We would like to remind interested authors to submit articles in the range of 3,500-6,000 words on a topic of their choice within this theme for consideration for publication in JIPLP. The issue will focus on several aspects of GIs with specific emphasis on recent developments in Europe and at the international level. Submissions addressing the topic from a comparative perspective are also welcome.

Relevant articles must be submitted through the online portal, be in accordance with JIPLP house style, and carry the indication that they are for consideration for the special issue of Geographical Indications.

The deadline for submissions is Monday, 30 November 2020. No late submissions will be considered for this special issue.

For authors interested in discussing informally the topic of a possible contribution, please email the Editors of this special issue, Eleonora Rosati and Irene Calboli, and/or Managing Editor Sarah Harris. 

The special issue will be available in complimentary open access for a limited period of time after publication. The editors are also considering the possible organization of a conference/meeting with the authors of the special issue in 2021 after the special issue has been published.

The Authors' Take - Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

by Kelsey Farish

Brands constantly seek to secure and promote their goodwill and reputation in the hearts and minds of the public. The use of individuals – either as models, spokespeople or other brand ambassadors – is often a key part of that process. But what control does the individual model (professional or otherwise) have over a photograph that depicts them? From a copyright perspective, unless the image is a selfie, the answer is usually, “not very much control at all”.

At law, a photograph’s subject is typically not entitled to exploit the image in question without permission from the relevant copyright owner or its licensees. Even in jurisdictions with strong image (personality) rights regimes, the issue of controlling an image by virtue of being depicted in it is rarely straightforward. Such matters often turn on privacy, commercial context, and the unique circumstances of the person’s public profile.

In addition to the legal complexity, the expectations and practical concerns surrounding control over one’s own likeness seem to be shifting. This is due in part to a growing movement amongst content creators, influencers, and other public personas seeking fair recognition and remuneration over how their likeness is exploited. Furthermore, accusations of cultural appropriation and unfair exploitation of models, as well as airbrushing and manipulation more generally, remain hot-button issues in the world of media and advertising.

Thankfully, freedom of contract provides ample opportunity for a photograph’s subject to exert at least some control over how their image is used. That said, it can be difficult to know where to start when seeking to protect the interests of both the individual and the brand.

The author of the forthcoming Practice Point, entitled 'Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness', hopes that this guidance will be useful for those drafting contracts marketing campaigns and influencer agreements, as well as high-profile celebrity endorsements.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Fundamental Rights as External Constraints on Copyright Law: Horizontal Effect of the EU Charter after Funke Medien and Spiegel Online

Fundamental Rights as External Constraints on Copyright Law: Horizontal Effect of the EU Charter after Funke Medien and Spiegel Online

by Daniël Jongsma

It is a well-known characteristic of European copyright systems: limitations and exceptions are exhaustively enumerated, they are precisely defined, and they are historically interpreted strictly or even restrictively. A result of this closed system is that certain uses may not be exempt from infringement even though they constitute an exercise of a fundamental right. For this reason, there has been a decades long debate about the answer to the question whether fundamental rights can serve as an autonomous defence against copyright infringement. 

In its judgements in Funke Medien (C-469/17) and Spiegel Online (C-516/17) the Court of Justice of the European Union (CJEU) appeared to resolutely reject the idea of fundamental rights as such “external constraints” on copyright. If this is true, one might conclude that the safeguarding of fundamental rights is to solely occur through an interpretation and application of copyright law itself that is, insofar as possible, consistent with those rights. This begs the question: what to do when a consistent interpretation is not possible, when a use that ought to be permitted from the perspective of fundamental rights nevertheless constitutes a copyright infringement? Has the CJEU placed EU copyright on a collision course with fundamental rights, for instance as protected by the European Convention on Human Rights? 

I do not think so. I conclude this on two grounds. First, I suggest that the CJEU did not conclusively rule on the question of so-called “horizontal direct effect” of fundamental rights in copyright cases. Second, and more important, Funke Medien and Spiegel Online only concerned the relationship between substantive copyright law and fundamental rights. They did not address the issue of remedies. Secondary EU legislation does not require that remedies are granted automatically upon a finding of infringement. Moreover, the EU Charter of Fundamental Rights may even require in certain cases that national courts refuse to enforce copyright. The CJEU must elucidate the boundaries set by the Charter. In my contribution to JIPLP I substantiate these conclusions and make some suggestions as to the limits EU law might impose onto national law.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India

Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India

by Akanksha Jumde and Nishant Kumar

Using case studies of two of the oldest art forms practiced in Bihar, India, this article analyses challenges relating to the implementation of the law on Geographical Indications (GIs) in India, to better protect the rights and the craft of its most important stakeholders: the artists. This article is also a critique of the application of the current Indian GI regulatory framework to its traditional handicraft sectors. 

To address the relevant research questions, we undertook qualitative interviews with Sujini and Madhubani artists, their representatives and officials from government bodies, supported by field visits to the Muzzafarpur district, Bihar. 

We found that the GI label accorded to these art forms has become an effective tool for the artists’ self-expression. However, a GI registration has made limited contribution to ensure an increased economic rationale for their artists, and the reasons for that are manifold. These include, inter alia: lack of adequate government support in post-GI registration stages, ineffective provisions for quality control, discrepancies in the definition of ‘Goods’ and ‘GI’, the anomalous concept of ‘authorised user’, and difficulties in application for registration requirements. Issues with the construction and implementation of the law pose serious limitations to the rights of the artists to ensure economic returns from their artworks.

The findings derived with reference the Sujini and Madhubani artworks are also relevant to the broader question of whether GIs can protect the traditional knowledge (TK/IK) of the stakeholders of the handicraft industry, as well as other types of GI products. Based on some of the recommendations provided by existing studies on other types of GI, we suggest several legislative amendments to strengthen the extant legal framework on GIs in India. We also recommend several practical measures that can be taken by the artists or their associations for a more effective utilisation and enforcement of their GI rights.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon] 

The Authors' Take - A question of (e)Sports: an answer from copyright

A question of (e)Sports: an answer from copyright

by Amy Thomas

With a void in live sport events as a result of the COVID 19 pandemic, eSports (a.k.a. competitive video gaming) have been catapulted into the spotlight. The rapid growth and relative youth of the industry mean that regulatory discussions are imminent, but many questions remain about the nature of eSports: are they ‘just’ a video game? A sport? A mix of both? As an industry fundamentally underlain with a creative work, copyright has a high stake in answering this question.

This article uses copyright as an analytical tool to better conceptualise eSports, offering an overview of copyright subject-matter from a UK perspective, both in the statutory provisions of the CDPA and judicial decisions (particularly Nova Productions v Mazooma Games and FA Premiere League v QC Leisure). Through the prism of three of the main eSports actors – the game rightsholder, tournament organiser and professional player – the article reveals a system of unprecedented downstream control facilitated by copyright ownership. This is at odds with the generally accepted conclusion that sports as such cannot be protected by copyright.

This article provokes the conceptualisation of eSports as ‘more than just a game’; instead, it should be understood as a sport which is fundamentally owned. As a result, copyright can be used to legitimate the governance of a game that impacts people’s social, economic and legal realities. Such a conclusion is sub-optimal if it does not take a holistic appreciation of the other eSports actors who contribute their skill and creativity to this industry. But if copyright is part of the problem of downstream control, perhaps it may also hold a solution. To explore this further, the article makes comparative reference to South Korea as the genesis and mecca of eSports, offering an alternative response to the boundaries of rightsholder control in this new industry.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - The CJEU reaches a controversial compromise on the scope of protection of plant variety rights

The CJEU reaches a controversial compromise on the scope of protection of plant variety rights

by Adrián Crespo 

This upcoming article, which follows up on the author's previous article in JIPLP, examines the judgment of the Court of Justice of the European Union (CJEU) in Club de Variedades Vegetales Protegidas (C-176/18), a landmark ruling on plant variety law. In this case, the CJEU tackles a referral from the Spanish Supreme Court which revolves around one of the key issues of European and international plant variety law: the so-called ‘cascade system’ and the enforcement of plant variety rights in respect of harvested material.

In summary, the CJEU has ruled that the activity of planting a protected variety and harvesting the fruit thereof, which is ‘not likely to be used as propagating materials’, requires the authorisation of the holder, provided that the original variety constituents were used without authorisation and the holder did not have a reasonable opportunity to exercise his rights. The author examines this finding critically in the wider policy context of European plant variety law and argues that the CJEU has applied a distinction according to the botanical characteristics of the harvested material and, in particular, the reproductive characteristics. This entails some practical advantages, but -in the author’s view- also raises some issues of its own. Furthermore, the ambiguities in the judgment’s wording may require some clarifications in the future.

The CJEU has also ruled that the holder is not entitled to prohibit performance of any acts such as variety propagation, marketing, importation etc. during the pre-grant, ‘provisional protection’ period. Therefore, performance of such acts does not constitute ‘unauthorised use’ for the purposes of the ‘cascade system’. The practical implications of this finding, which is highly important for breeders, are also examined critically.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Love, passion and … IP: When a copyright work goes too far

Love, passion and … IP: When a copyright work goes too far

by Peter Groves

Intellectual property law rarely concerns itself with love and passion, but one case that has those elements, to excess, is Glyn v Weston Feature Film Company [1916] 1 Ch. 261. As every student of copyright knows, the judge (Younger J, later Lord Blanesburgh, never one of our most distinguished judges) denied Elinor Glyn's novel Three Weeks the protection of copyright law because it was "grossly immoral". In fact, he held that the defendants' parodic film was so different from the book that it did not infringe, going on to say that alternatively it would have been permitted as a burlesque. Only then did he make his comments about immorality, which should therefore be seen as obiter - and unsupported by authority.

Three Weeks seems to modern eyes an unremarkable book. When it was published in 1907, however, it was eagerly-anticipated, and the author herself helped hype it, with the publishers pulling it, the author writing that friends had told her it was too racy, then unnamed “persons in the highest position” giving her the green light. Eventually, it was the only book to sell more than 100,000 copies in 1907 and went on to sell millions more. Its author became a global brand, and enjoyed great success as a Hollywood scriptwriter as well as continuing to write novels. Surely it deserves more than a footnote in the IP textbooks, and so does Mrs Glyn.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]