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Is IP protected internationally in the digital age?

Posted by Laura Urquizu on Monday, Jul 3, 2017

What international agreements are in place to protect Intellectual Property, and are they really effective in the digital age?


A history of Intellectual Property

Intellectual Property is a concept first realised, although not by name, in Ancient Greece, with the opportunity for inventions to be patented for one year. Historically, as countries developed in power and innovation, IP became more recognised and protected by law. However, although inventions were protected in their origin country, as travel became more possible so unfortunately did copycatting.

 it was not until 1883 that an international copyright agreement came into place, with the Paris Convention for the Protection of Industrial Property. The convention granted a national standard of protection to foreigners, focusing on invention patents which worked on the first-to-file principle across member states.

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 International protection of literary, artistic and scientific work

However, whilst inventions were being protected across member states, other types of IP were left vulnerable to theft. Successful writers like Walt Whitman, Edgar Allen Poe and Charles Dickens were losing money as the US and UK strengthened ties without litigation, and transatlantic newspapers were copying off one another relentlessly. They may not have lived in a world where messaging apps like Telegram are used to find free book downloads, but as it turns out, wherever pirates can pirate, they will pirate. Dickens in particular was fierce in his stance for international copyright protection. In 1843, following a visit to the United States where he discovered a plethora of unauthorised publications of his work, Dickens formed the Association for the Protection of Literature, which made efforts lobbying for an international IP protection law.

 In 1886 the Berne Convention was first signed in Berne, Switzerland, and protected literary and artistic works between its member parties to at least a national standard, with membership currently standing at 172 countries and party states. The agreement, formed under a bureau (WIPO) within the United Nations, enforced a requirement that all of its parties must recognise copyrights held by other members. Because its members are almost all part of the WTO, non-members, too, must abide by the treaty in line with the Agreement on Trade-Related Aspects of IP Rights.

 The Berne Convention protects all artistic, literary or scientific works provided that the work is original, creative and fixed in a tangible medium, “whatever the mode or form of its expression”. Works are protected for at least 50 years after the author’s death - except photographs which are protected for at least 25 years, and cinematographic works, which are in copyright for 50 years after the first showing, or else 50 years after creation. The protection is automatic; requiring no formal registration to enforce with the exception of works produced in the United States, who did not ratify the agreement until 1989.

How is Intellectual Property being redefined for a digital age?

The Berne Convention was last amended in 1979, 10 years before US ratification. Historically, amendments to US-specific copyright law have been deplored for supposedly following a Mickey Mouse Curve - that is, US IP protection repeatedly being extended just before Disney’s Mickey Mouse would enter the public domain. The criticisms are comparable to the Millennial fight on EU copyright law, which strongly advocates for fair use in order to support a ‘remix culture’ to protect innovation and emerging creatives, and against the monopoly that IP protection grants.

Patents have similarly been criticised as ineffective for a digital age as the world becomes ever-connected, and counterfeiting is relatively uncontrollable unless patents are procured ubiquitously. There are initiatives like the Madrid System in place in order to standardise patents internationally, but in practice the one-size-fits-all Madrid system cannot be applied to Chinese IP law, where the threat of counterfeit production is the global highest.

Whilst the Berne Convention is by no means invalid today, it was never developed for a digital era. Determining the country of origin - a process crucial to enforcement of the Berne Convention - has become a grey area, and no protection was stipulated for modern IP such as computer programs. In 1996 a WIPO Copyright Treaty was formed to address copyright in a digital environment. Implemented in US law in the Digital Millennium Copyright Act (DMCA), the WIPO Copyright Treaty protects computer programs as literary work, and prohibits circumvention of technological measures protecting works (like DRM protection).

The DMCA also included a ‘safe harbour’ provision to remove liability for intermediaries, a provision that has been cited in many high-profile court cases regarding digital piracy. ‘Safe harbour’ is the reason that Google can link to illegal sites, and the MPAA’s war on search engines which has been called out for internet censorship and for breaching users’ privacy. It’s likely also to be an aim of reform for new coalition ACE, which sees rivals Disney, Amazon and Netflix partnering against piracy. Netflix has long bee criticised as making piracy worse, but as it increasingly rolls out original content the incentive to protect its own and others' IP is clear.

Bills like SOPA and PIPA, and treaty ACTA, were proposed in 2011 in further attempts to combat digital piracy. However, all three were opposed by many high-profile organisations and companies, criticised as attempts to censor the internet and force ISPs to comply with rightsholders to protect content. The Anti-Counterfeiting Trade Agreement (ACTA) would impose blanket copyright and counterfeit laws to all ratifiers. However, despite 31 signatories, Japan is the only country to ratify the agreement thus far. Although 22 EU member states signed the treaty, European Parliament committees saw strong opposition, and finally the European Parliament voted against ACTA in 2012.

The challenges that copyright law faces in a digital environment are numerous, and are difficult to overcome. It is clear that an overhaul is necessary to ensure that innovation can be protected and financially supported, but also that emerging innovators are not discouraged by monopolies and creative restriction. This is surely the crux of Millennials’ opposition and circumvention of copyright law. However, monetisation is necessary in order that IP creators can continue in their work, and thus by pirating Millennials are not fighting the system but rather devaluing its intent. By understanding and working to influence an emerging generation, IP owners can work towards a mutually beneficial future of digital consumerism. Anti-piracy strategies like Red Points' Copright Protection work by combining industry know-how with automated learning tech to stay one step ahead of pirates, and challenge the changing relationship between Millennials and online content.

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About the author

Laura Urquizu

Post Written by Laura Urquizu

Red Points' CEO Laura Urquizu has over 20 years experience as an executive and board director in banking, venture capital and startups. She has worked with companies like Arthur Andersen, Caja Navarra, Corporación CAN and Inspirit. Laura is a respected expert in the startup field and innovation-based businesses.