Emerging Tech - a "double-edged sword", says the EUIPO

Emerging tech has been a topic of significant interest in recent times: not only for its exciting and innovative subject matter (think of technology such as robotics, 3D printing, artificial intelligence (AI) and blockchain), but also because it is forcing businesses (and society at large) to recast traditional ideals and embrace new possibilities.  It is an area of uncharted opportunity and risk.  Inherent in this discussion is the role of intellectual property rights, such as in respect of protection, infringement and enforcement issues. 

The EUIPO (through the European Observatory on Infringements of Intellectual Property Rights and its group of experts) has recently published a discussion paper on the impact which six emerging technologies (robotics, 3D printing, nanotech, AI, augmented reality (AR) and blockchain) have on IP rights.  These technologies are explored through a methodology known as the 'IP Tech Chain', which divides the application of new technologies into four phases: exploration, conversion, weaponisation and utilisation.  The paper sets out various actual and hypothetical use cases for each of the technologies, and considers the potential positive and negative effects of each on the protection, and enforcement of IP rights.

It is interesting (and perhaps surprising) to note that most of the technologies discussed can play a role in the protection and enforcement of traditional IP rights.  For example, AI and blockchain may be used in the creation of higher quality systems for registering and documenting IP rights, customs authorities might use nanorobots to detect counterfeit goods in freight containers, and various technologies may play a role in optimising existing law enforcement processes more generally.

However, there is another edge to the sword.  With the dawn of any emerging technology comes risk as well as opportunity. Indeed, all of the technologies discussed certainly have the potential to be used by IP infringers in such a way as to undermine existing IP rights by facilitating the creation, development, marketing or distribution of counterfeit or otherwise infringing works.  Some specific examples of risks given in the discussion paper include the hypothetical use of blockchain technology to record stolen musical ideas (the blockchain user thereby acquiring legal rights in the work and depriving the musician from the ability to prove ownership of the creation), and the use of AR by criminals to generate a new criminal system at the merging point of the real and virtual worlds.  The paper also discusses some of the potential copyright issues that could arise from the growth of AR technology, including by the creation of 'deep fakes' which can cause reputational damage to the copyright owner in addition to the basic infringement.   

Clearly all of the emerging technologies explored by the EUIPO are evolving at pace, and their precise impacts upon society and the world economy are yet to be fully appreciated.  Nonetheless, the EUIPO's discussion paper demonstrates that thinking within the IP community is branching out from the 'traditional' territory of IP rights and beginning to open the pandora's box of IP issues presented by the technologies that will shape the world of the future.

The double-edged sword metaphor recognises the reality that emerging technologies may be used for good or evil - just as a particular technology may present an exciting opportunity from the perspective of IP protection and enforcement, that same technology may also pose an equally dangerous threat to IP owners and those who seek to protect ownership of IP. Regarding some technologies (including AI, for example), the EUIPO’s group of experts tend to think that the opportunities will outweigh the threats.  For others, it is simply too early to tell.  IP regimes across Europe and the world will need to stay alive to developments and be prepared to move swiftly in order to create the legal environment necessary to effectively harness the benefits of these exciting and disruptive new technologies, whilst keeping a tight enough grip on the possible risks.

Further iterations of the discussion paper are expected as the EUIPO and its groups of experts conduct more workshops and analyse a wider range of emerging technologies.