Rethinking Intellectual Property in a Digital World
Intellectual property (IP) encompasses intangible assets that are the result of human creativity such as inventions, literary and artistic works, symbols, names, images and designs used in commerce. And as we move into an increasingly digital world where the concept of the metaverse (a single, shared, immersive, persistent, 3D virtual space) is slowly finding its origins, the perception of IP and how it is evolving in this new reality is pushing the boundaries on legislative rights, fundamentally changing the concept of what it means to own intellectual property and how to protect it.
Traditional intellectual property rights are outlined from a legislative point of view on matters such as copyright, trademark and patent infringement; also addressing trade secret misappropriation, software piracy, counterfeiting and plagiarism.
But when these matters are viewed through the lens of Artificial Intelligence (AI) or the ability to sell digital assets using non-fungible tokens (NFTs) in any global jurisdiction or the emerging risk of name, image and likeness (NILs) rights, owners of intellectual property rights have a fair bit more to consider. This is according to Zamani Ngidi, TMT Champion & Cyber Solutions Senior Client Manager at Aon South Africa.
The Age of Artificial Intelligence (AI):
AI is currently taking the world by storm with a plethora of online applications making their way into cyberspace. The most noteworthy being AI natural language processing tools such as ChatGPT, Google Bard and Microsoft Bing that can assist you with composing mails and writing essays, to mention a few. While handy, these AI platforms are raising some questions and speculation around copyright infringement, posing a challenge from a regulatory and legislative point of view.
AI’s mimicking of personality traits such as voices that are immediately recognisable, also raises uncertainty around who owns the voice, especially if that voice is used on a commercial platform endorsing an idea, product or entity. One such example is a video shared by Orlando Pirates using a voice speculated to be that of Morgan Freeman, narrating the video. It serves as the perfect example of a grey area that exists from a legislative point of view, especially across jurisdictions that could leave companies exposed to legislative proceedings.
The legal concept of protecting IP, grants exclusive rights to individuals and entities, to control and profit from their inventions or creations and safeguard against unauthorised use, reproduction or exploitation of their IP. It is crucial for organisations to fully understand the value of an organisation’s IP and how to protect it.
Identifying Critical IP Assets
In the past decade there’s been a direct correlation to market value and the increase of intangible assets. “As businesses begin to drive their digital journey and technology enabled business models, they increase their susceptibility to IP infringement and IP related risks. Part of the change in the business landscape is for businesses to be able to trade across geographies, as such, further exposing themselves to potential and more litigious geographies,” says Ngidi.
“Financial analytics and modelling can help inform risk transfer methods, such as limits and scope of intellectual property insurance coverage. As IP theft becomes a more considerable issue and competitors look to increase market share, companies may also need to defend themselves against accusations of IP infringement or theft. As a result, businesses could be exposed to potentially significant financial losses and reputational damage,” Ngidi explains.
South Africa, whilst not litigious, has had legal frameworks in place for IP infringement for quite some time such as the Trademarks Act of 1993, Copyright Act of 1978 and the Patents Act of 1978. Recent cases that have come to fruition are, however, setting a trend in the importance of companies being able to articulate and defend what differentiates their business in the intellectual landscape. These include:
• Makate v Vodacom
• Multichoice South Africa (Pty) Ltd v Barron and Another
As businesses drive their tech enabled journey, they cannot be left negligent in developing an IP strategy. It is at this junction that the assistance of an experienced broker that has insight into intellectual property solutions becomes crucial. “Speak to your broker today about IP infringement cover from both a defensive and prosecutive point of view that is optimised to provide you with the peace of mind of knowing that your most valuable IP assets are protected and secure,” Ngidi concludes.
