JJUB55170U The Digital Age and Intellectual Property Rights

The digital age had and still has a major effect on society in a wide variety of ways.

Social media in a broad sense have changed the way how we deal with each other.

Blockchain technology promises new applications which might fundamentally change the way how people in a business environment and beyond can deal with each other.

Artificial Intelligence has and will become even more a disruptive technology. Its potential is almost unlimited and its effects will be felt in a very broad array of applications, amongst which the legal profession, medical diagnostics and treatments, and of course autonomous vehicles and many other areas of technology which will be virtually entirely automated or better made autonomous.

Big data will play an ever increasing role in many areas of technology, not only in the ”usual suspects” such as social media and the use of big data in determining and predicting consumer behaviour, but also in the medical sector, where personalised medicine will need big data at a massive scale with a view to tailor more efficient medical treatments to more individualised genetic profiles.

These fascinating developments in current and future society will be the focus of this course. In particular, we will see how the digital age has shaped and is further shaping intellectual property rights, and conversely, how intellectual property rights can or cannot deal with those fast pace technological developments.

We will focus on the following intellectual property rights: copyright and related rights and patent rights. We will also zoom in on trade secret rights, which will likely become increasingly important in the digital age, with all consequences this may have. 

During the course, we will also zoom in on one important alternative to IP rights in the context of software, and that is the world of open source software. We will discuss how open source software has evolved, whether it is a valid and positive or negative alternative to IP protection etc.

There is a good reason to focus on intellectual property rights in the context of the aforementioned technological developments. The theoretical and economic assumption behind IP rights is that they foster creativity and technological innovation. The theory further holds that without IP rights, creativity and technological innovation would stifle.

In a first part of the course, we will first of all analyse this theoretical underpinning, before we try to apply it to the digital age we currently live in, and subsequently determine what conclusions can be drawn.

The structure of the course is as follows:

1. Introduction to IP: theoretical and economic underpinnings

2. Copyright in the digital age: after a concise introduction into some of the basics of copyright law, we will look into some of the key ”problems” the copyright system is currently dealing with:

• The sharing of copyright protected works on social media, not necessarily with the consent of the right holder
• Hyperlinking of copyright protected works, again not neccesarily with the consent of the right holder
• Copyright protection for electronic databases, software and the like.
• What about the role of service providers such as social media, Google, YouTube etc? Can they be held liable for the contents posted on their platforms.
• What kind of legal remedies can be filed for to tackle the spread of infringing material on social media and the internet?
• Do we want such enforcement remedies, or do we think that in a digital age, information should be available to all of us without charge? That brings us within the realm of the relationship between IP rights and fundemantal freedoms such as the freedom of expression etc.
• The role of so-called Technological Protection Measures (TPM’s), which are technical means (often software) used by right holders to prevent third parties from copying protected works or even accessing technical devices (such as game consoles) without the consent of the right holder or producer of the technical devices
• How does Artificial Intelligence influence the copyright system?
• Is Blockchain a blessing or a curse for the copyright system?
• What is the role of the copyright system in the context of big data?

3. Patent protection in a digital age: after a concise introduction into the fundamentals of the patent system, we will discuss a variety of issues with which the patent system has to deal with in the digital age:

• Patent protection provides specific leverage, which is somewhat different from other IP rights, and we will discuss some of the legal and economic underpinnings of this leverage
• Is software patentable, and what is exactly protectable under software patents?
• We will discuss how large parts of social media platforms have become the subject of patent protection, which has certain effects in terms of maket power. We will critically discuss the consequences thereof
• Artificial intelligence provides different challenges for the patent system. One of the questions is who is the inventor if an invention is made by an autonomous system. Another question is how to deal with inventions which claim self-learning systems, where the inventor (and for that matter also those who have to judge whether the patent can be granted or not) does not know him/herself what the results will be which the self-learning system will come to, also sometimes referred to as black-box technology. We will discuss and critically analyse these and other aspects during the course
• Blockchain patents. Even though the technology was originally developed outside of the realm of IP protection, blockchain technology patents are now a reality. We will discuss what can be patented, what the consequences could be, etc.
• We will also discuss how the medical sector increasingly becomes dependent on digital technology. AI is one of them. Big data is another one of them. We will analyse how the medical sector is changing rapidly, and how the IP system is shaping that change, but also how digital technologies pose challenges for the patent system in the medical sector. The underlying motivation for the medical sector to have become reliant on digital tools is the world of personalised medicine. We will analyse what personalised medicine is and how digital tools have shaped this area of medical technology

4.

The importance of so-called Standard Essential Patents (SEPs) and FRAND licensing

SEPs are a common phenomenon in areas such as telecom, big tech and software related industries. Prominent examples of standard essential technology are 5G technology, video compression technologies, the JPEG standard for viewing pictures, WiFi technology, Bluetooth, and USB ports. Those technologies are likely protected by hundreds if not thousands of patents. As they have such a major importance in the relevant technological space, everyone in the industry, and/or consumers need access to that technology. Much of that technology is protected by patent rights. For society, it is important that those technologies are at least available for use in combination with other technologies, as otherwise they might not only block further innovation, but may also present unhealthy dominant positions in the market for those owning the IP rights in those essential technologies.

It is therefore that under competition law rules, right holders of such SEPs have an obligation to license those technologies under what is called FRAND licensing terms (Fair, Reasonable And Non-Discriminatory). This means that the holders of such patents will be prevented from blocking access to those technologies by third parties.

In this course we will discuss what is meant by all of the above, how the case law has framed the conditions for FRAND, and what it means in practice.

5. Trade secrets law is also becoming increasingly important in the digital age. Even though it is not an IP right as such, trade secret law plays an important and increasingly important role in the context of technical innovation. One of the main characteristics of all IP rights is that the creation or technical innovation is in one way or another disclosed to the public. This has positive effects for society, which can take cognizance of those creations and innovations, but that is not always what creators and innovators want. In some cases, they may want to keep matters secret, as that can give them an important lead time advantage on the market. In this course we will discuss what trade secret law is all about, both from a legal and economic perspective, and we will see how the digital age makes trade secrets rather important.

Why you should take this course:

This course will allow BA students to acquire not only knowledge about a fascinating area of technology and law which will, whether we like it or not, shape present and future society in probably fundamental ways, and which is crucial for their future careers (as indeed the future of the law will be in one way or another be in combination with the technologies discussed in this course), but also develop analytical skills and competences so as to be capable of analysing critically and resolving legal problems in the abovementioned areas of the law in a real-life setting, whilst at the same time it stimulates critical thinking on the part of students so that whatever is learned during this course can also be applied in a policy making environment.

The advantage of taking this course in English is also that, whether one wants it or not, for virtually all future job purposes, a good knowledge and proficiency in English and legal English will be minimum requirements, whether that is as a lawyer in a law firm or in-house counsel. Most clients are international and communication with those will have to be in English. Moreover, in the large majority of cases, there is a multijurisdictional element as well, i.e., it is rare that a case is litigated in only one country, which implies that international coordination will be necessary, which in turn leads to the use of English as the common language to streamline international litigation.
 

By taking this course as a student, you will, apart from the fascinating contents, also kill two birds with one stone. You will improve your professional and legal English, and by doing so, you will have a competitive advantage over those students who do not take English taught courses.