Defending both creators and the public: will AI and the blockchain transform IP management?


Written on 13 September 2016

The ultimate goal of an artificial general intelligence – a computer that can perform any task a human can do – is still some way off.  But well before that becomes reality, the world’s most advanced supercomputers, for example IBM’s Watson and Google’s DeepMind, are already able to process vast quantities of information in incredibly short periods of time relative to humans. These ‘artificially intelligent’ systems are beginning to make inroads into the formerly exclusively human capabilities of analysing legal information and decision making.

The ‘AI lawyer’ ROSS Intelligence is being deployed as a form of legal research assistant, able to retrieve relevant information from a large set of statutes and cases. However, the real challenge of practising law lies not in finding the information but forming the appropriate subjective interpretation of it. Computers as of today may not appear able to do so, lacking human perception and the biases arriving from different cultures.  But it is surely arguable that if humans cannot always reach a predictable, consensus view, a computer-generated interpretation within tolerable limits of human variability might just be acceptable.

Where could AI make a difference?

Very few cases justify the cost and time of a full trial, but in many everyday situations guidance on the applicable legal tests derived from complex and often subjective cases could make a significant impact. Below we elaborate on one particular use case: how AI could help with the application of the much misunderstood tests of fair use and fair dealing in international copyright law. We then consider how a combination of blockchain and AI can assist with the management of digital rights.

In both instances, once an AI computing system can effectively identify users (both consumers and businesses) which are operating outside the parameters of a licence or exception, the protection and enforcement of those intellectual property rights could become markedly easier and overhaul the way in which the creative content industries protect their IP.

Fair use and fair dealing in international copyright law

Copyright holders’ exclusive rights in the US and Europe are subject to a number of exceptions, most of which are directed at using the content for a specific purpose such as use by educational and legal systems. US law also recognizes the need for a more flexible exception (where the uses do
not commercially compete with the exploitation of the work by the copyright holder). European member states are subject to the European Copyright Directive. The exceptions included in the Directive are options, derived from the pre-existing copyright laws of the individual member states. For the purpose of comparison, we take a closer look at the UK copyright laws, and more specifically the fair dealing exceptions. The fair use/fair dealing exceptions are primarily a common law principle, meaning that most continental European countries which have implemented these exceptions will have done so in a slightly different way.

UK approach

In the UK, copyright is subject to three notable ‘fair dealing’ exceptions permitting:

1.     copying small abstracts and excerptsof copyright works for non-commercial research;

2.     copying copyright work or a performance of a work for the purpose of criticism or review; and

3.      use of works (except for photos) in the course of reporting current events.

The test for what is ‘fair’ is a matter of degree and the impression the court forms of the defendant’s conduct.

US approach

Under the US fair use exception, copying a copyright work for purposes such as criticism, comment, news reporting, teaching, scholarship or research does not infringe copyright. In determining whether the use of a work is fair, factors such as  purpose and character of the use, the nature of the work, the portion of the copyrighted work used and the effect of the use on the market for that copyrighted work must be considered.

While the US and UK approaches appear very similar, the key difference is that the list of purposes  which may be fair use in the US is non-exhaustive; UK law excepts only a short, exhaustive list.

US courts have accordingly been free to apply the exception in a wide range of circumstances as long as the use is fair. The UK courts, on the other hand, first have to assess whether the particular use falls within the limited categories of use which are capable of being exempted.

Thus, for instance, the English High Court recently ruled that an 8 second clip from a 2 hour cricket match broadcast was not fair dealing and so infringed copyright. The Court held that the fan site’s use was for entertainment, to which viewers could add comments, rather than a criticism
or review merely illustrated by the clip. Circumstances such as this can lead US copyright users to mistakenly think that EU copyright owners attempt to overstep their legal entitlements and prevent uses which should be permitted.

Can AI navigate these grey areas?

In time, AIs such as Watson and ROSS should be able to analyse and decide whether or not a particular use falls within the restricted list of uses, which could help prevent infringement by US copyright holders in Europe. For now, the question of fairness might still be too fuzzy for AIs to decide, but
as they continue to evolve (for want of a better word) their ability to analyse the pertinent factors, interpret and make informed decisions will increase.
They will be able to compare different legal systems, their case law and the reasons for its development. In addition, they may soon be able to assess additional factors such as public policy and the way that copyright materials are consumed.

Digital Rights Management, AI and Blockchain

Media companies already protect their products using digital rights management methods. But the impact of digital management in effectively preventing uses which could be made of works in physical form, combined with the uncertainties implicit in exceptions such as fair use, have caused tensions between producers of creative content and consumers of that content.  Can AI and smart contracting through blockchain help?

Digital rights management through blockchain?

Blockchain is a decentralized and highly encrypted digital ledger which allows data to be securely stored, managed and transferred. While it originated with the crypto currency bitcoin, its potential applications extend to smart contracting and IP contract management.

For instance, Verizon is developing a password blockchain technology platform as a digital rights management platform to deal with sensitive data, allowing the transfer of access rights from user to user. The technology will allow for a pay-per-use digital rights management system which ensures that artists or authors are paid immediately once an article is read or a song is listened to. This will enable Verizon to keep a fully up-to-date record of any software products which they license to third parties and also audit its use on a transparent and on-going basis.  Another such platform is Ujo Music, which the artist Imogen Heap is using to distribute her music via Blockchain.

Blockchain could allow for a secondary market for copyright materials and could also represent a simplified and streamlined means of managing digital rights in the future. It will also enable computing systems to effectively manage and enforce the ownership and licensing of all forms of intellectual property rights.

As we have already seen, not all uses of copyright infringe in the first place, so licences and payment are not always required. Blockchain may not be able to recognize and address this: a transaction of some kind will always be required if content is accessed or copied. If blockchain technology allows for exceptions to be codified, and more importantly, recognized and acknowledged as consideration for a transaction, blockchain could be an effective digital rights management solution.

The combination of an AI “exceptions judge” with a Blockchain-based management system could be one way to achieve this, maintaining the balance between content creators and users, ensuring that free-riding (outside the realms of copyright exceptions) is minimized whilst also permitting those free and fair uses which the framers of copyright legislation throughout the world have agreed are in the best interests of society.

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*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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