Conference Report: Intellectual Property in the Era of Big Data and Blockchain

Each year, the first days of February or so are the occasion for this Kat to travel to his former home town and spend a day on the benches of the University of Geneva, listening to thought-provoking IP discussions at the traditional Journée de droit de la propriété intellectuelle or JDPI. This year's conference was dedicated to "Intellectual Property in the Era of Big Data and Blockchain". Once again, the participants were not disappointed by the high-profile panel of speakers and the high quality of the talks.

University of Geneva

After brief welcome speeches by the law school's dean (Prof. Bénédict Foëx) and Prof. Jacques de Werra (who was organizing the conference with Prof. Irene Calboli and Dr. Yaniv Benhamou), the day started with a keynote by Yo Takagi, Assistant Director General of the WIPO, who spoke about "Artificial Intelligence & Intellectual Property: a WIPO perspective". The speaker pointed out that AI and big data are usually intertwined, since machine learning depends on the analysis of selected big data. Mr. Takagi also offered an overview of existing AI initiatives in national and regional IP offices. Finally, he presented WIPO's "Conversation on AI and IP" (a draft AI issues paper is available under www.wipo.int/pressroom/en/articles/2019/article_0017.html).

The second speaker, Carlos Correa (South Centre), addressed "Data ownership and beyond". The presentation started with a legal and economical overview of the concept of "data" and how data can be protected by law, particularly copyright. The speaker also dwelled on data governance and showed that, if one accepts that data can be owned, it would still not be clear whom the law should regard as the owner and what "ownership" would practically entail. The speaker closed his presentation by remarks on data policy and the idea of data sovereignty.

Prof. Alain Strowel (UC Louvain and Université Saint-Louis) discussed the concept of property rights in data under European law. In the first part of his presentation, Prof. Strowel introduced the participants to the "data appropriation triangle", underscoring the (unequal) importance of contractual, technological and property-like means for controlling data. In practice, contractual, technical and practical measures are heavily relied upon, while property-like options (such as copyright) are less important. Prof. Strowel then turned to the different types of data (think trade secrets, personal data, open data or non-personal data), subject to very different legal regimes in the EU. The speaker finally presented the text and data mining exceptions in the DSM Directive (a topic this Kat would have been delighted to hear more about, had there been more time).

The topic of data ownership was analysed under Swiss law by Prof. Florent Thouvenin (University of Zurich). The concept of "property" has both positive (handle, use, and transfer) and negative aspects (access and defend). Prof. Thouvenin asked whether a genuine property right in data is desirable and answered the question in the negative. First, data is a non-rivalrous resource that is produced and used constantly. Second, the practical issues that arise in connection with the processing of data can be solved by limited and specific amendments of existing laws. Finally, creating a property right in data might have unintended consequences, not least for the concept of the property right itself.

Prof. Daniel Kraus (University of Neuchâtel) examined how blockchain technology may affect the business of intellectual property. As a subject matter of IP, blockchain technology is a multi-faceted concept. Prof. Kraus insisted that the different layers of blockchain technology be carefully distinguished when discussing the protection "of blockchain" by intellectual property rights. As a tool of intellectual property, blockchain technology can potentially play an important role as a means of evidence, e.g., as a proof of the creation of works and licensing. As an example, blockchain technology is already used by a Swiss watch brand to provide evidence of the origin of second-hand products and to fight counterfeiting.

A practical example of how AI and big data have transformed the services industry was provided by Claire Fobe (Darts-IP). Darts IP is increasingly using machine learning and neuronal network tools to transform data from different sources and formats into a structured and harmonized output. AI solutions are now able to extract points of law from decisions and provide good results, especially when applied to IP office decisions, which are generally far more standardized than court orders. Interestingly, Ms. Fobe underscored that not a single workplace was lost to AI within the company, as the employees could use their skills to perform other tasks that cannot be automated, such as collecting documents.

Prof. Julien Cabay (Université Libre de Bruxelles and Université de Liège) took on the topic of upload filters under Art. 17 of the DSM Directive (see Kat Eleonora Rosati's chart on this topic here). He started with a general overview of this essential (and controversial) new provision of EU law. Prof. Cabay proposed a reasoned solution of the apparent contradiction created by Art. 17(8) of the Directive ("The application of this Article shall not lead to any general monitoring obligation") with the general understanding that Art. 17 specifically requires the use of automated upload filters. Prof. Cabay suggested that Art. 17(8) should be interpreted in line with the EU Charter of Fundamental Rights. The speaker concluded that Art. 17 does contemplate a duty of filtering uploaded content, but the scope of such duty is limited to "identical" or "equivalent" content, to the exclusion of merely "similar" content.

The last speaker, Michèle Burnier (Pestalozzi), provided a detailed overview of big data-related aspects of the newly revised Swiss Copyright Act. The speaker focused on the new antipiracy measures, particularly the new regime related to the liability of hosting service providers. Ms. Burnier also considered the new rules on the protection of photographic works, where protection will be available regardless of originality. The speaker then mentioned the new research exemption provision, the new extended collective licensing scheme and the enlargement of the existing exception in favour of orphan works. [This Kat is currently preparing a post on the revised Swiss Copyright Act, so stay tuned.] 

Picture on the left by MHM55 licensed under CC BY-SA 4.0