In celebration of this year's theme for World IP Day, IP and Youth: Innovating for a Better Future, we are exploring the IP implications of emerging technologies that may shape our collective future: (A) artificial intelligence, (B) the metaverse, (C) non-fungible tokens, and (D) clean technologies.
Creative, curious, tech-savvy, and with a determination to create a better future, the youth of today are leveraging technology like never before to harness their collective strengths. As they mature into the innovators of tomorrow, technology will likely play a key role in their success.
In support of this innovative spirit, this post highlights how the above-noted technologies may present challenges and opportunities to innovators with respect to the creation and protection of IP
A. Artificial Intelligence
The World Intellectual Property Organization (WIPO) defines artificial intelligence (AI) as "a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence". AI is advancing rapidly as governments and private enterprises around the world race to invest in the development of AI-based technologies to secure continued economic growth.
As AI technologies have gained prominence, established systems of intellectual property protection have been called upon to secure the rights of AI innovators, such as through patents on AI inventions and copyrights in related software code. AI has the potential to facilitate innovation by supporting human innovators, at varying levels of involvement, with the identification and creation of solutions to problems in a variety of fields from finance to medicine to marketing. The recognition of AI's contributions to such innovations poses a challenge to existing frameworks for IP protection, however.
We have previously written about the implications of AI on the nature and scope of IP, namely whether AI based technology could be an author or inventor of copyrighted works or patentable inventions within traditional legal frameworks designed to incentivize human innovation. One notable recent development in this debate relates to the treatment of a patent application naming an AI inventor called DABUS (Device for Autonomous Bootstrapping of Unified Sentience) by courts in different jurisdictions. The courts have had to grapple with the issue of whether to issue patents naming an AI inventor instead of a human inventor. The outcomes so far have been mixed, with lower courts in South Africa and Australia concluding that DABUS could be the named inventor but courts in the U.S. and U.K. holding that the inventor must be human.
While these outcomes reflect differences in patent legislation and jurisprudence between countries, they illustrate the broader ongoing debate over the need to adapt frameworks for IP protection to the reality of AI innovations.
B. The Metaverse
The "metaverse" is generally understood as an immersive virtual space where users can interact and share experiences. The metaverse can be seen as an evolution of augmented reality technologies, such as certain video games, that leverage wearable headsets with embedded video screens and other input and output devices to allow users to sense and interact with a parallel virtual environment.
- In addition to recreational and social activities, the metaverse also presents a venue in which to innovate and conduct business, raising questions of IP protection:Who owns IP created in the metaverse? The metaverse may present opportunities for immersive and intimate collaboration among people, taking remote work and video conferencing to new levels. To the extent that metaverse spaces are made publicly available by private enterprises, will such companies have an interest in innovations created in the metaverse? Even if no interest arises by law, might such companies demand a stake in innovations created in the metaverse as a condition of use? The answers to these questions may raise further issues related to policies of fostering collaborative innovation and concentration of IP ownership.
- Do "real world" IP protections apply in the metaverse? For example, does a trademark registration confer protection in the metaverse? If so, is the protection of the same scope as in the real world? Is the protection afforded to the registered trademark in the metaverse jurisdictionally limited as in the real world? These questions will confront businesses and policymakers as the metaverse becomes a venue for the marketing and sale of goods and services.
- Relatedly, will the virtual nature of the metaverse necessitate changes to conventional strategies for IP protection? For example, should trademark owners file their trademarks for use in association with goods and services in a virtual marketplace to ensure protection in the metaverse? Could patented inventions be digitized for use in the metaverse? What might the implications be for surveillance and enforcement by IP owners?
IP owners may wish to proactively take steps to try to protect their IP assets and enforce related rights in the metaverse as the technology develops and becomes mainstream. It is inevitable that best practices will develop over time as IP owners engage with this technology, and it remains to be seen whether and how IP laws and the courts will adapt and respond to the unique IP issues it raises.
C. Non-Fungible Tokens ("NFTs")
NFTs are blockchain-based digital assets that contain identifying information that may be associated with digital files such as photos, videos and audio. Each NFT has a smart contract providing proof of ownership of the digital file. The value from an NFT is derived from the fact that NFTs are "non-fungible", meaning that it is unique. This is different than other forms of blockchain, such as cryptocurrency, where each unit is the same.
The primary IP right for digital assets and NFTs would be copyright, which in Canada would provide the author of the work with the exclusive right to make available to the public or reproduce the literary, artistic, musical or dramatic work beginning immediately upon the creation of the work till fifty (50) years after their death. However, as time progresses, other IP rights, and indeed other legal concerns, may become involved. NFTs have already presented interesting interactions in the public, such as marketplaces for the buying and selling of NFTs, and the creation of communities based on the ownership of common NFTs. It would not be surprising if the use of NFTs evolved to include other types of IP.
If you wish to learn more about NFTs and their current role in IP, please click here for a more in-depth analysis.
D. Clean Technologies ("Cleantech")
Climate change is an ever-growing problem, and as such, solutions and technology to combat climate change will likely become more prevalent over the next few years. Clean technologies, also known as cleantech, includes not only said technology, but also technology that helps resolve or mitigate environmental impacts or conserves the natural environment and resources.
While cleantech has always been a consistent source of IP, specifically patents, it is expected that there will be a growing trend to file patents surrounding cleantech for the foreseeable future. Not only is the deterioration of the environment a growing concern and hence a driving force for new cleantech innovations, but countries are committing to agreements or creating legislation that will force both the governments and its citizens to mitigate climate change. Canada is a party to the Paris Agreement, and has also proposed legislation pertaining to emissions reductions accountability, which in turn will act as a further driving force to develop cleantech and file IP related to cleantech.
Conclusion
From facilitating collaboration to promoting sustainable economic growth to identifying and creating solutions to pressing problems, emerging technologies have incredible potential to support innovation. As we celebrate World IP Day, we look forward to the continued development of these technologies and consider how society's frameworks for IP protection may need to adapt to ensure that tomorrow's innovators are incentivized to put forward their best ideas.
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