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The history of intellectual property (IP) is closely interlinked with that of technology. Among the innovations that have disrupted our daily lives in the broadest sense – from how we keep in touch with others to how we shop, from how we meet our romantic partners to how we work and study – the emergence of the internet is likely to be regarded as the most relevant one. Naturally, IP has also been affected by and has sought to react to the novel issues that this new medium has been raising. Let’s go over some of them then!
Copyright … trapped in the net?
Starting with copyright, the arrival of the internet has facilitated the dissemination and consumption of protected content, both lawfully and unlawfully. Among other things, consumers have been moving away from the idea of having to rely on TV and vinyl, CDs and VHS cassettes to enjoy content like music and films. Instead, reports confirm that on-demand internet streaming – as opposed to the use and ownership of physical supports or TV – has been on the rise over the past few years in several creative industries, including music and film.
In turn, courts like the Court of Justice of the European Union (CJEU) have had to answer several questions, including:
- Can one download or stream illegal content without the fear of legal consequences? The CJEU answered ‘no’ to both illegal downloads and streaming, finding that available copyright exceptions would not cover these situations.
- Can the operator of an internet platform be directly infringing copyright? The CJEU has said ‘yes’ in relation to the (in)famous Pirate Bay but was more cautious with regard to YouTube. This said, following a recent reform of EU copyright, YouTube now needs to have copyright owners’ authorization to make available content uploaded by users.
- Can the provision of an internet link to protected content infringe copyright? The CJEU has had to answer this question several times, always moving from the assumption that, yes, even the provision of an internet link may well fall within the scope of copyright protection.
The other IP rights: not easier questions!
Things have also been challenging for the other IP rights. Think, for example, of patents and design rights. Protection under either regime is only possible when, respectively, an invention or design is not already part of the ‘state of the art’. This concept refers to information that needs to be evaluated to decide whether an invention or design is novel and, therefore, protectable. Should information retrieved from the internet be part of the state of the art? The answer is ‘yes’ for both, and that is so even if such information is not indexed by search engines!
Still on the patent front, innovations stemming from the internet, such as the Internet of Things, have also been resulting in several patent applications.
Think then about websites and apps and the interfaces that allow us to ‘interact’ with them. Are graphic user interfaces (GUIs) protectable under IP law? Indeed, they are: both design and copyright protection is available in principle to GUIs.
IP protection online
The internet has also raised issues regarding how to guarantee the effective protection of IP rights online. To this end, internet intermediaries – ranging from internet access providers to social media platforms, from payment providers to search engines – have been increasingly involved in the protection of IP rights on the internet.
Domain names also deserve a special mention. Did you know that they can play a role in ensuring protection of IP rights online? Indeed, information about who is responsible for domain names is publicly available to allow, among other things, enforcement of trade mark rights. In addition, at certain conditions and among other things, the owner of a trade mark has the right to prevent others from registering and using domain names that may mislead consumers into thinking that there is a connection between the resulting website and the trade mark owner.
From the internet to … the future
In conclusion, the emergence of the internet and then its rapid expansion into all aspects of both personal and professional life has profoundly changed how society works and, with that, raised new questions, some of which still remain without a clear-cut answer. For example, can a platform like Amazon be liable for the sale, by third parties, of counterfeits through its platform? The CJEU will need to answer this question over the next few months.
In all this, policy- and law-makers have also been reflecting on whether new rules are needed. At the EU level, the discussion around the forthcoming Digital Services Act, a new regulation that will impose detailed rules and obligations on online services that will be also relevant to IP owners and users, has been progressing at full speed since the European Commission unveiled its proposal nearly a year ago.