Copyright Must Win

Author: Artha Dermawan (Indonesia-qualified Lawyer, Doctoral Student at the University of Lapland (Finland), funded by the Max Planck Institute for Innovation and Competition (Germany), and Visiting Researcher at the Australian Intellectual Property Institute, the University of Melbourne)[1]

Research Group: Law, Technology and Design Thinking

In the rapidly evolving landscape of technology and creativity, the advent of generative artificial intelligence (GenAI) has presented unprecedented challenges and opportunities to the domain of copyright law.[2] 

Artha Dermawan

At the heart of this technological revolution lies a critical question: does copyright, a centuries-old legal framework designed to protect the rights of creators, still hold its ground in encouraging and safeguarding creative works? This blog post argues affirmatively, positing that copyright is not only relevant but essential for the sustenance of human authors and the vibrancy of the economy, drawing lessons from the transformative impact of copyright in China's economic resurgence.[3] 

Copyright law was conceived as a delicate balance between the rights of creators to control and benefit from their creations and the public's interest in accessing knowledge and culture.[4]  This principle, rooted in the notion that incentivizing creativity through exclusive rights would lead to a richer cultural tapestry, has been the cornerstone of copyright since its inception.[5] 

However, the rise of GenAI, with its ability to produce original works reminiscent of human creativity, has stirred a debate on the relevance of copyright in the digital age. Critics argue that the ubiquity and efficiency of GenAI in generating outputs might render human creativity obsolete, undermining the economic rationale for copyright.[6] However, this perspective overlooks the intrinsic value of human authorship, which encompasses not only the creation of content but also the expression of human experience, emotions, and cultural nuances that GenAI cannot replicate. Copyright plays a pivotal role in ensuring that human authors are recognized and rewarded for their contributions, thereby motivating continued creative endeavors.[7]

The economic argument for copyright is further reinforced by the experience of China, where the introduction and enforcement of copyright laws have been instrumental in propelling the country's economy.[8] Prior to the adoption of robust copyright frameworks, piracy and the unauthorized use of intellectual property were rampant, stifling innovation and creativity. The enactment of copyright laws catalyzed a cultural and economic renaissance, fostering an environment where creativity could flourish, and innovators could reap the rewards of their labor. This transformation underscores the economic benefits of copyright in stimulating growth, encouraging investment in creative industries, and enhancing the country's competitive edge on the global stage.[9]

Moreover, copyright is not a zero-sum game that stifles innovation in the name of protectionism. On the contrary, it provides a structured framework within which innovation could thrive. The law allows for fair use, exceptions, and limitations that ensure the public's access to creative works while protecting creators' rights.[10] This equilibrium is crucial in the digital age, where the dissemination and remixing of content can serve as a catalyst for further creativity and innovation.

In the context of GenAI, copyright must evolve rather than be discarded. Legal frameworks need to adapt to the nuances of AI-generated outputs, distinguishing between outputs that are genuinely independent creations of GenAI and those that are derivative of human creativity. This differentiation is vital in ensuring that copyright continues to protect human authors without stifaring the potential of GenAI as a tool for augmenting human creativity.

In conclusion, the assertion that copyright must win in the era of GenAI is not a call for resistance against technological progress but a recognition of the enduring value of human creativity and its role in driving economic prosperity. As we navigate the complexities of the digital age, copyright remains a crucial mechanism for safeguarding human authors, ensuring that they are at the heart of the creative process, and sustaining the economic vitality of creative industries. Therefore, the preservation and adaptation of copyright laws are imperative for the continued flourishing of human creativity and economic development in the age of GenAI.

Copyright must win, and in the symphony of technological innovation, copyright remains our cultural compass, guiding the fusion of human creativity and economic prosperity.

__________________________

[1] This blog post is inspired by the policy framework proposed by the author in ‘AI v Copyright: How Could Public Interest Theory Shift the Discourse?’ published in volume 19(1) of the Journal of Intellectual Property Law & Practice in 2024 and ’Text and Data Mining Exceptions in the Development of Generative AI Models: What the EU Member States Could Learn From the Japanese “nonenjoyment” Purposes?’ Forthcoming in Journal of World Intellectual Property in 2024. The latter article was awarded second place in the 2022 Essay Competition organized by The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), sponsored by the International Federation of Intellectual Property Attorneys (FICPI). Unless specified otherwise, all internet references were last accessed on February 10, 2024.

[2] From the training data perspective, see, Artha Dermawan, ’Text and Data Mining Exceptions in the Development of Generative AI Models: What the EU Member States Could Learn From the Japanese “nonenjoyment” Purposes?’ (Journal of World Intellectual Property, 2024). On the egenral observations, see also, Annemarie Bridy, ‘Coding Creativity: Copyright and the Artificially Intelligent Author (5 Stanford Technology Law Review 1-28, 2012); Emmanuel Salami, ‘AI-generated Works and Copyright Law: Towards a Union of Strange Bedfellows’ (16(2) Journal of Intellectual Property Law & Practice 124-135, 2020); Artha Dermawan and Péter Mezei, ‘Artificial Intelligence and Consensus-Based Remuneration Regime in Southeast Asia’ (2023). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4625850; Mark Lemley and Bryan Casey, ‘Remedies for Robots’ (86 University of Chicago Law Review 1311-1396, 2019); Peter Yu, ‘The Algorithmic Divide and Equality in the Age of Artificial Intelligence’ (72 Florida Law Review 331-388, 2020); Vincenzo Iaia, ‘To Be, or Not to Be … Original Under Copyright Law, That Is (One of) the Main Questions Concerning AI-Produced Works’ (71(9), GRUR International, 793-812, 2022); Pamuela Samuelson, ‘Allocating Ownership Rights in Computer-Generated Works’ (47 University of Pittsburgh Law Review 1185-1188, 1986); Péter Mezei, ‘You AIn’t Seen Nothing yet' – Arguments against the Protectability of AI-generated Outputs by Copyright Law’ in Maurizio Borghi and Roger Brownsword (eds.), Informational Rights and Informational Wrongs: A Tapestry for Our Times (Routledge, Abingdon, 126-143, 2023).

[3] See, World Intellectual Property Organization (WIPO), ‘The Impact of Copyright on the National Economy Should not be Underestimated’ (2022). Available at: https://www.wipo.int/about-wipo/en/offices/china/news/2022/news_0027.html.

[4] Artha Dermawan, ‘AI v Copyright: How Could Public Interest Theory Shift the Discourse?’ (19(1) Journal of Intellectual Property Law and Practice, 2024) p. 56. The article underscores the necessity of defining clear objectives for copyright law, advocating for an evidence-based, consensus-driven, and morally grounded approach to balance creators' rights with public access to creative works.

[5] See, Christophe Geiger, ‘Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?’ (8(3) UC Irvine Law Review, 2018).

[6] See, e.g., Anna Shtefan, ‘Creativity and Artificial Intelligence: A View from the Perspective of Copyright’ (Journal of Intellectual Property Law & Practice, 2021) pp. 720-728; Daniel J. Gervais, ‘The Human Cause’ in Ryan Abbott (ed.), Research Handbooks on Intellectual Property and Artificial Intelligence (Edward Elgar, 2022); Mark Lemley, ‘How Generative AI Turns Copyright Law on its Head’ (2023). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4517702.

[7] Artha Dermawan, n.4. See, Martin Senftleben, ‘Generative AI and Author Remuneration.’ (54 International Review of Intellectual Property and Competition Law, 2023). See, Nicola Lucchi, ‘ChatGPT: A Case Study on Copyright Challenges for Generative Artificial Intelligence Systems.’ (European Journal of Risk Regulation, 2023) pp. 17-21. See also, Christophe Geiger, To Pay or Not to Pay (for Training Generative AI), That is the Question, (JOTWELL, 2023) (reviewing Martin Senftleben, Generative AI and Author Remuneration, 54 International Review of Intellectual Property and Competition Law, 2023). Available at: https://ip.jotwell.com/to-pay-or-not-to-pay-for-training-generative-ai-that-is-the-question/.

[8] The relevance of copyright laws in boosting the Chinese economy is well-documented and multifaceted. According to the WIPO, innovation, creativity, and intellectual property, including copyright, are pivotal for economic recovery and sustainable development. The copyright industry significantly contributes to the GDP and employment, with China's copyright industry ranking among the top five globally. This industry not only plays a crucial role in China's innovation-driven development but has also positioned China from a follower to a leader in the global copyright arena. The development of industries with local characteristics, such as textiles and ceramics, showcases China's experience and contributions to global copyright governance, offering unique Chinese solutions to copyright challenges​. WIPO, ibid.

[9] Moreover, the theoretical rationales for IP protection emphasize the encouragement and reward for creative work. Copyrights and related rights cover literary and artistic works, granting legal protection to creators, thus fostering a culture of innovation and creativity. This protection is deemed crucial for stimulating inventive activities, with the protection of IP rights ensuring that creators can reap the benefits of their investments. In China, modern IPR regulation has evolved significantly since the 1980s, with improvements in legal frameworks and enforcement mechanisms aimed at fostering a conducive environment for the protection of intellectual property​. Muehlfeld Katrin and Wang Mei, ‘Intellectual Property Rights in China—A Literature Review on the Public's Perspective’ (7 Frontiers in Sociology, 2022). Available at: https://www.frontiersin.org/articles/10.3389/fsoc.2022.793165/full.

[10]  Artha Dermawan, n 4.

Transparency and sharing requirements for data in the EU - stimulating or killing innovations?

Authors: Rosa Ballardini & Rob van den Hoven van Genderen

Research group: Law, Technology and Design Thinking

1. Introduction

Rosa Ballardini

The European data Strategy[1] is directed at the creation of a European single open market for the use of all categories of data to enhance a competitive edge as well as give users and data-subjects access to such data. This gives the opportunity to put into active use also unused data, for e.g. data generated by Artifical Intelligence (AI) or other technologies.

 The strategy is supported by a legal framework to make this possible. The problem is that while an open and transparent data society sounds positive, it can cause problems as well. If all data, personal as well as non personal, should be available for third parties, the chance of intruding on privacy and trade secrets, as well as intellectual property rights and security can also increase. Moreover, the incentive for investments and creating new products, services or other inventions could be seriously diminished.

 2. An EU Strategy for Data

Rob van den Hoven van Genderen

Acknowledging the opportunities but also the high risks and challenges related to the use and processing of data, the European Union has launched in 2020 a European data strategy[2] harnessing existing barriers and creating a single European market for data, while fully respecting EU policies on fundamental rights such as privacy, data protection as well as competition. A driving principle of the data strategy relates to creating an appropriate balance between protection, regulation and innovation to allow data to flow freely within the EU and across sectors, in accordance with the ‘free movement of data’, which is one of the five pillars of the European internal market. 

To achieve the ambition of the EU data strategy, various regulatory actions have already been taken, and more legislative initiatives are underway. The Data Governance Act[3] and the upcoming Data Act[4] (that are often jointly referred to as the ‘Data Acts’) are the most recent pieces of law released as part of the European strategy for data. The Data Governance Act which entered into force in 2022, aims to facilitate the voluntary sharing of data by individuals and businesses and harmonises conditions for the use of certain public sector data.

The Data Act, was approved by the European Parliament on 9th November 2023 and is expected to enter into force in autumn 2025 (except from Article 3(1), the transition period of which is one year longer). It is a horizontal Regulation that covers different regulatory aspects related to (personal and non-personal) data collected by connected products and related services (in the B2B, B2C and B2G contexts). The Data Act will complement the Data Governance Act by better harnessing the potential of data sharing, providing further opportunities for the reuse of data by tackling both the problem that most data remain either unused and that its value is concentrated in the hands of relatively few large companies. In addition to data sharing obligations and access rights, the Data Act contains rules on switching between data processing services and international transfers of non-personal data. 

The ‘Data Acts’, however, do not exist in a vacuum. Instead, they strategically complement the already existing EU legal framework for data governance. This comprises inter alia the General Data Protection Regulation (GDPR)[5], the Free Flow of Non-Personal Data Regulation[6], the Open Data Directive[7], as well as the Database Directive[8], and the Platform to Business Regulation[9]. For instance, the 'Data Acts’ are consistent with existing rules in the GDPR on the processing of personal data and protecting the private life and the confidentiality of communications, as well as any data stored in and accessed from terminal equipment.[10] The ‘Data Acts’ further complement these privacy-focused provisions, particularly with regards to personal and non-personal data generated by a user’s product connected to a publicly available electronic communications network.

Especially, the forthcoming Data Act builds further on the Free Flow of Non-Personal Data Regulation in this regard. In fact, the Free Flow of Non-Personal Data Regulation aims at removing obstacles to the free movement of non-personal data between different EU countries and IT systems in Europe by ensuring that every organisation should be able to store and process data anywhere in the EU, and ensuring availability of data for regulatory control. It also introduces codes of conduct to facilitate switching data between cloud services to tackle the problem of ‘vendor lock-in’. The Data Act builds on all this, helping even more citizens and businesses to switch cloud providers and port data.

Moreover, the Data Act also tackles some of the long-lasting controversies existing in the context of the Database (DB) Directive. The DB Directive protects databases that have been created as a result of a ‘substantial investment’, even when the database itself is not ‘original’ in the sense of qualifying for copyright protection. A long-standing and highly debated issue here relates to whether databases containing data that are eg. machine-generated, would be entitled to protection under the dictate of the DB Directive.[11] The draft Data Act expressly provides that, in order not to hinder the exercise of the right of users to access and share data with third parties "the sui generis right provided for in Article 7 of Directive 96/9/EC does not apply to databases containing data obtained from or generated by the use of a product or a related service” (Art. 35 of the draft Data Act).

Moreover, the Data Act provides that although, as a rule, trade secrets must be protected, they may be disclosed if the data holder and the user “take all necessary measures prior to the disclosure” to preserve confidentiality (Art 5 of the Data Act). However, access may be refused only if the data holder, which is a “trade secret holder”, can demonstrate, and duly substantiate, that they are “highly likely to suffer serious economic damage” from the disclosure, on a case-by-case basis (Art. 4(3b) of the draft Data Act). So proof will lay with the data-holder who will bear all costs. Finally, the ‘Data Acts’ complement also both the Platform to Business Regulation, which imposed transparency obligations, requiring platforms to describe for business users the data generated from the provision of the service, and the Open Data Directive, which defines minimum standards for re-using data held by the public sector and of publicly funded research data made publicly available through repositories.[12]

As previously mentioned, there are also other forthcoming regulations that will impact the current (personal and non-personal) data governance rules, primarily the proposed Digital Markets Act[13], which requires certain providers of core platform services identified as ‘gatekeepers’ to provide more effective portability of data generated through business and end users’ activities. Also the so-called ‘Digital Services Act package'[14], comprising the Digital Services Act (DSA)[15], and the Digital Market Act (DMA)[16], which prohibit especially so-called “dark patterns” will be relevant, and so will the so called ‘Artificial Intelligence Act (AI Act)’, which is an abbreviation of the proposal for a regulation of the European Parliament and of the Council on harmonized rules on Artificial Intelligence[17], which is particularly relevant in the context of data regulation in relation to AI technologies.

3. The Dark Side of a Policy about “Sharing Just for the Sake of Sharing”

While securing a sustainable data governance framework for data sharing is absolutely essential for the well-functioning of the data economy and for incentivising innovations such as those related to AI, this way promoting progress and wellbeing, an open and transparent data society can also raise certain risks and dangers. First, when data, whether personal or non personal, is made available to any third parties, the chance of intruding on privacy and trade secrets, as well as intellectual property rights and security also increases. At the same time, enforcing data sharing in a way that is not balancing the interests of the dataholder that has invested effort and finances to develop and produce products and/or services and is forced to give entrance to e.g. trade secrets in a not necessarily proportional manner might also long-term disincentivize investments in creating new products and services.

Although an open and transparent data society sounds positive, it can cause problems as well. If all data, personal as well as non personal should be available for third parties, being it private, public, commercial as well as governmental institutions, the chance of intruding on privacy will increase. For example, from the point of view of privacy-related concerns, sensitive data are covered by several of the existing and forthcoming data sharing and data governance provisions in the EU, particularly the ones related to privacy and data protection like the GDPR. This is so because due to the increasing possibility to identify natural persons by AI technology, almost all data become personal data.

This is specifically mentioned as “factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person” (art 2.1 GDPR). Even more, the applicability of data protection on these kinds of data, as mentioned in article 2.14 GDPR, so-called “biometric data”, means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data. These kinds of sensitive data are, according to Article 9-bis, forbidden to be processed except with the consent of subjects, or other legitimate reasons listed in the article (e.g.  securing the data subject’s vital interest or reasons of national (security) interest). Also sharing is processing and will be subjected to this provision.

Moreover, Article 22 GDPR states that: “The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her”. These requirements could certainly complicate the transparency and sharing requirements of the Data Act. Referring to the Data Act, some of the data as emotional, biometric and medical data, is not allowed to be processed at all by AI as is stated in Article 5 of the accepted last version of the AI act (June 2023).

Moreover, from the perspective of legal instruments to incentivise innovations in data industries, the new mandatory access to data requirement, is a challenge to say the least. As we know, IPR are not very good to protect data as such nor datasets.[18] One of the few exceptions is the sui generis database protection for datasets, that however does not have a glorious reputation either. Therefore, the most used way to secure protection of non- personal data is via contracts and trade secrets.

The Data Act forces companies to provide users (both natural and legal persons) with access to the data generated by their connected Internet of Things (IoT) devices, also including cases when trade secrets are involved. In order words, manufacturers and other data holders of connected products will have to open user data for free to users and under fair, reasonable and non-discriminatory (FRAND) terms to third parties in the EU as well as other third parties outside the EU, however, not subject to the FRAND terms. Indeed, one of the key issues of the Data Act has been the protection of trade secrets and intellectual property rights included within such user data.

Especially, it is questionable whether a concept such as FRAND, that has been successfully used in the context of technical standards where pre-existing essential patent rights to be shared are actually clear, can work in a context of data sharing where no clearly pre-defined IPRs are present before sharing. Questions as to what is a fair and reasonable compensation/price for e.g. will certainly be difficult to determine in such unclear circumstances.

Ensuring transparency regarding the data to be generated and facilitating access for the user is of utmost importance for many reasons, including also to enhance possibilities to access key information relevant to repair items and thereby (in this way) promoting the circular economy. However, one can question whether this is the right way to achieve the goal of stimulating the data economy and increase the functioning of the single market. Indeed, obligations and limitations regarding the use of the shared data are imposed in order to protect the data holder’s interests.

For example, users and third parties are forbidden from using the data received to develop products competing with that from which the data originate. Also, trade secrets may only be disclosed if specific measures to preserve confidentiality are taken and, where the data is to be made available to third parties, if it is strictly necessary to fulfill the purpose agreed with the user. But who will decide on the proportionality, and how can this be done?

4. Conclusion

From all this, what can be concluded is that the EU data strategy seems to have some (disturbing) counterweight in other parts of the EU regulatory framework, especially in relation to important aspects such as privacy as well as IPR and trade secrecy. Although the Data Act prioritizes the GDPR when personal data are involved, risks of intruding on privacy of individuals will obviously increase by this widely open data sharing policy.

In addition, the strong push towards sharing data possibly including those covered by trade secrecy might indeed have the effect of disincentivizing innovation in Europe, while offering even bigger opportunities here to other markets, especially the USA and China. Certainly, the interpretation as to rules and the exceptions included in the DA will require several decision rounds, likely increasing lawyering work while not necessarily increasing legal certainty. Indeed, it will be interesting to see what weight is the heaviest in this balancing act.

At this stage, we cannot but wonder, even if transparency is a good principle in a data driven society, does it still stand if it endangers trade secrets, privacy and security, as well as decreasing legal certainty?

---

^{[1] See: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/european-data-strategy_en}

^{[2] Ibid.}

^{[3] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022R0868.}

^{[4]  https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52022PC0068; accepted by EP on 9th of November, into force 2025}

^{[5]  https://eur-lex.europa.eu/eli/reg/2016/679/oj.}

^{[6] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1807.}

^{[7] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019L1024.}

^{[8] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009.}

^{[9]  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019R1150.}

^{[10] In accordance to the ePrivacy Directive: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32002L0058.}

^{[11] See e.g. Pihlajarinne, T., & Ballardini, R. M. (2019). Owning Data via Intellectual Property Rights: Reality or Chimera? In R. M. Ballardini, P. Kuommamäki, & O. Pitkänen (Eds.), Regulating Industrial Internet through IPR, Data Protection and Competition Law Kluwer Law International.}

^{[12] For a comprehensive overview on issues related to non-personal data governance Olga BATURA, Axel WION, Sofia Noelle GONZALEZ, J. Scott MARCUS, Ilsa GODLOVITCH, Lukas WIEWIORRA, Peter KROON, Serpil TAS and Nico STEFFEN, “The emergence of non-personal data markets“, Policy Department for Economic, Scientific and Quality of Life Policies Directorate-General for Internal Policies. Available at:  https://www.europarl.europa.eu/RegData/etudes/STUD/2023/740098/IPOL_STU(2023)740098_EN.pdf.}

^{[13] https://digital-markets-act.ec.europa.eu/index_en.}

^{[14] See https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package (accessed 4 August 2023).}

^{[15] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (Text with EEA relevance).}

^{[16] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (Text with EEA relevance).}

^{[17] Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (artificial intelligence act) and amending certain union legislative acts COM/2021/206 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0206.}

^{[18] See e.g. Pihlajarinne, T., & Ballardini, R. M. (2019). Owning Data via Intellectual Property Rights: Reality or Chimera? In R. M. Ballardini, P. Kuommamäki, & O. Pitkänen (Eds.), Regulating Industrial Internet through IPR, Data Protection and Competition Law Kluwer Law International}

Apple Vision Pro: Here’s How Spatial Computing Could Benefit Intellectual Property

Author: Artha Dermawan (Doctoral Researcher)

Research Group: Law, Technology and Design Thinking

Overture: To break new ground[1]

Earlier this week, Apple released a new product called Apple Vision Pro, a revolutionary spatial computer that seamlessly blends digital content with the physical world while allowing users to stay present and connected to others.[2]

Artha Dermawan

The headset boasts a high-resolution display and a wide field of view, making it ideal for immersive gaming and other virtual reality (VR) applications. It also features built-in sensors for tracking head movements, allowing users to explore virtual environments with greater freedom and precision.[3] In addition to its impressive technical specifications, the Vision Pro headset also offers a comfortable and customizable fit. The device comes with adjustable straps and padding, ensuring that users can wear it for extended periods without discomfort.[4]

What makes the Apple Vision Pro different than traditional VR? As illustrated in Figure 1 below, one key difference is the use of eye-tracking technology, which allows for more natural and intuitive interactions within virtual environments. Additionally, the Vision Pro's advanced display technology provides a higher resolution and wider field of view than many other VR headsets on the market.[5]

Figure 1. The significant distinctions between the traditional spatial computing and Apple Vision Pro.[6]

A spatial computing product such as Apple Vision Pro poses a significant threat to intellectual property (IP) rights as it allows for the creation of digital replicas of physical objects. This technology can potentially be used to replicate copyrighted and patented products, leading to infringement and a loss of revenue for the original creators.[7] Additionally, the ease of sharing these digital replicas through online platforms further exacerbates the issue of intellectual property infringement.[8]

But hasn't this problem existed since VR technology was introduced a few years ago? Yes, IP infringement has been a concern since the introduction of VR technology. However, with advancements in technology and the increasing popularity of VR, the issue has become more pressing and widespread. As VR continues to evolve and become more accessible to consumers, it is crucial for rightsholders to take measures to protect their IP. Some efforts to protect rightsholders have been made, such as the use of digital watermarks and encryption to prevent unauthorized copying and distribution of VR content.[9]

However, there is still a need for more comprehensive legal frameworks and enforcement mechanisms to address the unique challenges posed by VR piracy. Without adequate protection, creators may be discouraged from investing in VR content creation, ultimately limiting the growth and potential of this exciting new medium.[10]

Instead of discussing the never-ending negative consequences of this emerging technology, this blogpost will explore how Apple Vision Pro and spatial computing technologies bring benefits to the IP sector. It will delve into the ways Apple Vision Pro can improve IP management, create new revenue streams, and enhance user experiences. But before going any further, let's discuss what spatial computing is.

What is spatial computing? How is it different from the metaverse?

Spatial computing refers to “the digitization and modeling of the device’s environment and the objects within it, such that the device has spatial context.”[11] First defined in 2003 by MIT researcher Simon Greenwold, [12] spatial computing is a field that combines augmented reality (AR), VR, and mixed reality (MR) technologies to create immersive and interactive experiences.[13] It allows users to interact with digital content in the physical world, blurring the lines between the digital and physical realms. With spatial computing, users can manipulate and visualize complex data, design and simulate products, and even train for real-world scenarios in a safe and controlled environment.[14]

This technology has the potential to revolutionize industries such as healthcare, education, and entertainment, and is expected to become increasingly prevalent in the coming years.[15] For example, in healthcare, spatial computing can be used to create virtual simulations for medical training, allowing students to practice surgeries and procedures without the risk of harming real patients.[16] Additionally, in entertainment, spatial computing can be used to create immersive and interactive experiences for theme parks and museums.[17]

Spatial computing and the metaverse are two related but distinct concepts in the world of technology.[18] Spatial computing refers to the use of computer-generated spatial awareness to enhance human interaction with the physical world.[19]

The metaverse, on the other hand, is a fully immersive digital world that is accessed through virtual reality technology.[20] It is often described as a shared, persistent space where users can interact with each other and with digital objects in a way that is similar to the physical world.[21]

Apple Vision Pro vs. intellectual property: Will they support each other?

Trademark

The potential of Apple Vision Pro for IP protection is specifically explored and the use of Apple Vision Pro and Spatial Computing are used interchangeably.

What are the benefits of Apple Vision Pro for trademark protection? Apple Vision Pro has the potential to revolutionize the way trademark law is practiced. With the ability to create virtual representations of physical spaces, spatial computing can aid in the identification and enforcement of trademarks.[22] This technology can also assist in the analysis of potential trademark infringement by providing a visual representation of the similarities and differences between trademarks.

In the future, Apple Vision Pro could be used to track the use of trademarks in the physical world, allowing for more accurate monitoring of potential infringement. For example, a company could use Apple Vision Pro to create a virtual representation of a trade show floor and identify any unauthorized use of their trademarked products or logos. This would allow them to take quick action to prevent further infringement. Moreover, Apple Vision Pro could be utilized in the creation of AR experiences that incorporate trademarked products or logos, ensuring that they are used in compliance with trademark law.

One counterargument could be that the use of Apple Vision Pro in trademark law may not be accessible or affordable for all businesses, potentially creating an uneven playing field in terms of trademark enforcement. However, with the increasing availability and affordability of spatial computing technology, this argument may become less relevant in the future. In fact, many large corporations are already investing in spatial computing for trademark enforcement and brand protection.[23]

Furthermore, the use of Apple Vision Pro and spatial computing in general in trademark could ultimately lead to a more efficient and effective system for trademark identification and enforcement, benefiting both businesses and consumers alike. As this technology continues to develop and evolve, it will be interesting to see how it shapes the future of trademark law and enforcement.

Patent

Apple Vision Pro and Spatial computing have the potential to revolutionize patent law by providing a more efficient and accurate way to analyze and compare patent designs.[24] With the ability to create 3D models and simulations, spatial computing can help patent lawyers and examiners better understand the intricacies of a patent and its potential applications. This can lead to more informed decisions and better outcomes for both inventors and companies seeking to protect their intellectual property.

Additionally, spatial computing can facilitate collaboration between patent professionals by allowing them to easily share and manipulate patent designs in real-time. For example, a patent lawyer could use spatial computing to analyze and compare multiple versions of a complex mechanical design, easily identifying differences and making informed decisions about which version to patent. This could save time and money by avoiding the need for expensive physical prototypes or lengthy legal battles over patent infringement.

Furthermore, collaboration between lawyers and examiners across different locations can be facilitated by using virtual reality tools, enabling them to work together as if in the same physical space. In addition, virtual reality can also enhance the overall quality of patent examination by providing examiners with a more immersive and interactive experience, allowing them to better understand the technology and identify potential issues. This can ultimately lead to more accurate and thorough patent examinations.

Copyright

What are the benefits of Apple Vision Pro for copyright? This new technology has the potential to revolutionize copyright law by enabling more accurate tracking and monitoring of digital content (also in the metaverse). With the use of Apple Vision Pro, it is possible to create a virtual representation of copyrighted material and track its usage across various platforms and devices.

Additionally, spatial computing can help in identifying instances of copyright infringement and take necessary actions to prevent them.[25] Furthermore, Apple Vision Pro could also aid in the creation of more personalized and immersive experiences for users, while still respecting copyright laws. For example, virtual reality experiences can be created that incorporate copyrighted material in a way that is authorized and monitored, providing a unique and engaging experience for users.

This can also lead to new revenue streams for content creators, as they can license their material for use in spatial computing experiences. Thus, the potential for spatial computing to transform copyright law is vast, and it will be interesting to see how this technology continues to evolve in the coming years.

Design

Spatial computing has the potential to revolutionize the field of design law by offering a more immersive and interactive way to visualize and analyze intellectual property. With the ability to create 3D models and virtual environments, spatial computing can provide a more accurate representation of designs and products, making it easier to identify and protect intellectual property rights.[26]

Additionally, spatial computing can facilitate collaboration and communication among designers, lawyers, and other stakeholders, improving the efficiency and effectiveness of the design law process. For example, a team of designers and lawyers could use spatial computing to create a virtual prototype of a product and test it for potential infringement issues before it is even manufactured. This could save time and money in the long run by avoiding legal disputes and ensuring that the final product is fully protected by design patents and trademarks.

Additionally, spatial computing could be used in courtrooms to present evidence and arguments in a more engaging and persuasive way, helping judges and juries better understand complex design law cases. This technology could also be utilized by law firms to create virtual mock trials, allowing attorneys to test their arguments and strategies before presenting them in a real courtroom setting. Overall, the integration of spatial computing in the legal field has the potential to revolutionize the way legal disputes are handled and resolved.

The wind of change is here

Apple's new vision pro technology is set to revolutionize the way we interact with our devices. With its advanced eye-tracking capabilities and intuitive gesture controls, the vision pro system promises to deliver a seamless and immersive user experience that is unlike anything we've seen before. From gaming and entertainment to productivity and communication, the possibilities for this technology are endless.

The new Apple Vision Pro could help IP protection by incorporating advanced security features such as biometric authentication and encrypted storage.[27] Additionally, the device's integration with Apple's ecosystem will provide seamless access to secure cloud storage and collaboration tools for professionals.[28]

However, advanced security features do not necessarily guarantee complete protection against IP infringement, as hackers and cybercriminals are constantly finding new ways to breach security systems. Furthermore, not all professionals may prefer or have access to Apple's ecosystem, and could limit the device's usefulness in certain industries.

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[1] This article is not sponsored by any parties and except where otherwise stated, all internet sources were last accessed on 10 June 2023.

[2] ‘Introducing Apple Vision Pro,’ available at: https://www.apple.com/apple-vision-pro/.

[3] Ibid.

[4] Moreover, the headset's design incorporates ventilation channels to prevent overheating, a common issue with VR headsets. These features make the Vision Pro a top-of-the-line option for anyone looking to dive into the world of virtual reality. Ibid.

[5] Jay Peters, ‘Apple made a VR headset, but it’ll never admit it’ (theverge.com, 2023). Available at: https://www.theverge.com/2023/6/7/23750301/apple-vision-pro-headset-virtual-reality-vr-headset

[6] This figure summarises the presentation delivered in ‘Introducing Apple Vision Pro,’ ibid.

[7] Marcin Frąckiewicz, ‘The Impact of Spatial Computing on Intellectual Property and Copyright’ (TS2 Space, 2023). Available at: https://ts2.space/en/the-impact-of-spatial-computing-on-intellectual-property-and-copyright/.

[8] Ibid.

[9] Paolo Andreottola and Ben Hitchens ‘Future impact of emerging technologies on IP protection and enforcement - EUIPO updates its ‘Tech Watch Discussion Paper’’ (Lexology, 2023). Available at: https://www.lexology.com/library/detail.aspx?g=e67440aa-01e1-4110-b717-206994babf9b.

[10] Ibid.

[11] Spatial computing is not a new field, as it has been around for decades in the form of computer-aided design and virtual simulations. However, recent advancements in technology have made it more accessible and affordable for a wider range of industries. As spatial computing continues to evolve, it has the potential to revolutionize the way we interact with digital information and our physical surroundings. Jeffrey Delmerico, et al, ‘Spatial Computing and Intuitive Interaction: Bringing Mixed Reality and Robotics Together’ (arXiv, 2022). Available at: https://arxiv.org/abs/2202.01493.

[12] Simon Greenwold, ‘Spatial computing,’ (Massachusetts Institute of Technology, Master, 2003). Available at: https://acg.media.mit.edu/people/simong/thesis/SpatialComputing.pdf. See, on quantum spatial computing, Martin Werner, ‘Quantum Spatial Computing’ (Bundeswehr University Munich). Available at: https://www.sigspatial.org/wp-content/uploads/special-issues/11/2/06-Paper3_Quantum_Spatial_Computing.pdf.

[13] Jeffrey Delmerico, et al, ibid.

[14] Ibid.

[15] Marcin Frąckiewicz, ‘The Role of Spatial Computing in Healthcare and Medical Research’ (TS2 Space, 2023). Available at: https://ts2.space/en/the-role-of-spatial-computing-in-healthcare-and-medical-research/#:~:text=It%20is%20being%20used%20in,patient%27s%20body%20in%20virtual%20space.

[16] Ibid.

[17] Marcin Frąckiewicz, ‘The Role of Spatial Computing in Entertainment and Gaming’ (TS2 Space, 2023). Available at: https://ts2.space/en/the-role-of-spatial-computing-in-entertainment-and-gaming/#:~:text=Spatial%20computing%20is%20a%20form,interactive%2C%20engaging%2C%20and%20immersive..

[18] The word ‘metaverse’ was first coined n Neal Stephenson’s 1992 science fiction novel titled “Snow Crash.” Sol Rogers, ‘The Metaverse, Spatial Computing, And 5G’ (Forbes, 2020). Available at: https://www.forbes.com/sites/solrogers/2020/04/30/the-metaverse-spatial-computing-and-5g/?sh=43075d321b91.

[19] This can include technologies such as augmented reality, virtual reality, and mixed reality, which allow users to interact with digital objects in a physical space. Ibid.

[20] Ibid.

[21] The metaverse has the potential to revolutionize the way humans work, learn, and socialize by providing a limitless and customizable environment that transcends physical limitations. As technology continues to advance, the metaverse is becoming increasingly sophisticated and accessible, offering endless possibilities for exploration and creativity. Ibid.

[22] EUIPO, ‘Intellectual Property Infringement and Enforcement Tech Watch Discussion Paper 2023’ (2023). Available at: https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2023_IP_Tech_Watch_Discussion_Paper/2023_IP_Infringement_and_Enforcement_Tech_Watch_Discussion_Paper_FullR_en.pdf.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Apple Vision Pro, ‘Privacy and Security’ (2023). Available at: https://www.apple.com/apple-vision-pro/.

[28] Ibid.