Changing rules of the game

Protecting one’s intellectual property or IP right has become more and more difficult.

Take for instance digital photos posted on your social media account. A photographer has exclusive rights to the distribution of his photos, regardless of who is the subject of those photos. Using those photos without the photographer’s prior permission is a violation of his copyright and constitutes what we call copyright infringement.

But what if your photos are shared on the internet? There are no boundaries in terms of where those photos can end up? What if those digital photos are posted on an internet site hosted in an unknown territory and owned by someone you don’t know? Who and where do you sue?

Copying and pasting and sharing of photos and other materials have also been commonplace in today’s digital age. It has been common for some to use the acronyms CTO or CTTO which stands for credit to the owner, if one does not know who the real owner of those digital materials are. But can those letters provide the required attribution for the author of that original work? The Intellectual Property Office of the Philippines (IPOPhl) has said it is not, but then again, how do you go about chasing every Tom, Dick and Harry that distributes your material on the internet?

Very recently, there was this issue involving Canada’s Clearview AI which has a massive database of images. It is of course being investigated for possible violation of the Privacy Act when it scraped countless copyright protected images from social media sites to develop a commercial facial recognition technology without the permission of the subjects and the photographers.

In an article on cigionline.org, it was explained that Clearview AI, however, relied on an exception in the US Digital Millenium Copyright Act which includes an exception to protect online service providers or those which facilitate the communication of information over the internet or host user-provided content. The law was amended to exempt from liability by reason of the provider referring or linking users to an online location containing infringing material or activity by using information location tools, including a directory, index, pointer or hypertext link. Clearview AI is saying that it is a service provider offering an information location tool. A similar exception is said to exist under Canada’s copyright law.

Meanwhile, in an article posted on wipo.int, Andres Guadamuz cited how artificial intelligence or AI is being used to create literary and artistic works which are considered copyrightable works. For instance, Google has started funding an AI program that will write local news articles. How about the short novel written by a Japanese computer program? Or that new artwork called “The Next Rembrandt” generated by a computer that analyzed thousands of works of Dutch artist Rembrandt? Or the Google-owned AI company Deep Kind that created software that can generate music by listening to recordings? Or other projects that have seen computers write poems, edit photographs, or compose a musical? These, the article noted, are works of robotic artists or are computer-generated works of art.

In some jurisdictions, the article mentioned, like Spain and Germany, only works created by a human can be protected by copyright. In the US, the Copyright Office has declared that it will register an original work of authorship provided the work was created by a human being. And then there was this Australian case where the court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human.

The same article revealed that granting copyright to the person who made the operation of the AI possible seems to be the most sensible approach, but then the debate remains as to whether computers should be given the status and rights of people in terms of copyright and other IP rights.

Are our IP laws ready for the digital age?

The committee on trade of the House of Representatives is currently conducting public hearings on three bills that seek to amend the IP Code of the Philippines in order to keep the law at pace with technological changes, among others.

The proposals include imposing solidary liability on landlords unless they can prove that they have no knowledge nor participation in the infringing activity of their tenants. Under the present law, the so-called landlord liability provision penalizes landlords such as mall owners for copyright infringement provided they are notified of the infringing activity, have the means to control and prevent such infringement, and have benefitted from the infringing activity. But then one has to sue the tenant separately. As proposed, the landlord liability will be applied to internet service providers, domain name registries, website owners or similar mediums used in selling or making available to the public infringing materials who fail to exercise due diligence or fail to take down or block access to such materials, unless they can prove that they had no knowledge or participation in the infringing activity.

According to IPOPhl director general Rowell Barba, the modernization of our IP Code is now closer to fruition, emphasizing that the currently legal IP framework is much needed as international frameworks, standards, and best practices are evolving amid the rapid advances in technology.

Under enforcement and adjudication, IPOPhl is pushing for an amendment that will give the office the power to take down websites with infringing materials, one that will impose steeper fines on infringers and will remove the damage claim threshold (the Bureau of Legal Affairs has jurisdiction over damage claims exceeding P200,000), among others.

In the area of trademark, the agency is proposing the protection of certification marks and non-visual marks such as sound marks while in the case of copyright and related rights, it is pushing for clear-cut rules on orphan works, expanding the limitations for copyright, centralizing the registration and deposit of copyright works in IPOPhl, to name a few.

Note for Star Wars fans. The iconic sounds made by lightsabers, described as the sound of an oscillating humming buzz created by combining feedback from a microphone with a projected motor sound, are trademarked by LucasFilm. Thus, lightsaber toy manufacturers have to get permission not only for using the name but also for replicating the sound.

Changes due to technological advancements are happening so fast. In amending our IP law, we might also want to consider the best practices taken by other countries in terms of making our laws more flexible to any of these changes. Laws cannot change every time there are new technologies or developments but they can be crafted in a way that will allow our regulators to act on them effectively.

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