The benefit of possessing a right is seen in being able to exercise and enforce them. This is especially so in the scope of intellectual property (IP). The enforcement of intellectual property rights is a crucial aspect of promoting innovation and creativity.
It involves the legal means by which IP rights holders are able to assert their rights and seek redress in cases of infringement. In the contemporary world, the traditional means of enforcement are quickly becoming problematic and difficult to effect due to the rapid advancement of technology.
Although technology is a product of intellectual work and in turn has been beneficial to the development of intellectual property in diverse ways, the downside remains that it facilitates easy duplication/replication, communication to the public, piracy, commercialization and misappropriation of protected work. This amounts to rampant infringement of various IP rights of the actual rightsholders. The rise of online anonymity has become a particularly herculean challenge hindering the ability of rights holders to enforce their rights. It has led to “a wild goose chase” for rights holders who are often left with little to no options for seeking redress. The focus of this article is to unravel the problem of anonymity presented in the technological era in the enforcement of IP rights, and also to advance amicable solutions. By probing into this challenge and proposing strategies for effective enforcement, this write-up aims to shed light on the evolving landscape in the enforcement of IP rights in the digital era.
THE CURRENT ENFORCEMENT REGIME
The traditional enforcement regime of intellectual property (IP) rights typically involves legal mechanisms and procedures aimed at protecting the exclusive rights granted to creators and owners of intellectual property. These rights include patents, copyrights, trademarks, and trade secrets. These regimes as have been known over the years vary depending on the type of IP right and the jurisdiction of enforcement. Nevertheless, the common regimes for enforcement include employing the use of cease-and-desist letters, civil litigation through the courts to obtain remedies such as injunctions (orders to stop infringing activity) and damages, border protection, criminal enforcement in cases of egregious infringement, alternative dispute resolution, and other frameworks for enforcement which are provided under international treaties and agreements.
Overall, the traditional enforcement regime of IP rights involves a combination of legal, administrative, and contractual measures aimed at protecting the rights of creators and innovators while deterring and remedying instances of infringement. It is vivid that underlying these traditional enforcement mechanisms is the ability to identify the specific person who is the infringer to be able to bring them to book. Subsequently, this paper will highlight how technology has created the hurdle of anonymity which poses a great challenge to these traditional enforcement mechanisms.
TECHNOLOGY AND THE CREATIVE INDUSTRY
Digital technology remains one of the greatest achievements in today’s world, providing newer and broader scopes of opportunities, facilitating the accomplishment of previously complex tasks, and sharing as well as gaining access to information on an unprecedented vast scale. As technology evolves, it continues to play a significant role in shaping the future of innovation and creativity. Computer-aided designing software, prototyping tools, and artificial intelligence tools are being incorporated into creative practices offering new possibilities of faster and easier creation and experimentation. Improved communication tools enable better collaboration between creators, inventors, lawyers, IP offices, users, and other stakeholders. This streamlines more efficient IP development. Moreover, IP management software helps rights owners to manage their IP portfolios. Online patent databases also prove highly beneficial to inventors in the research stages to avoid re-inventing the wheel.
Apart from the avenues created by technology for creative and innovative expression, it has also transformed how creative content is consumed. The presence of social media platforms, e-commerce or online marketplaces, and streaming services have created new opportunities to extend global reach and achieve monetization of diverse products. By employing the internet, a vast array of works of literature, art, science, photography, movies, audio tracks and computer programmes have become digitized, which creates a possibility for users to access and interact with unlimited information resources.
Despite these massive developments, the same technologies are being employed by bad actors for various illicit activities including the infringement of IP rights. It is worthy of note that not only bad actors cause such infringement but the nature and use of technology itself easily facilitates infringement which may be unintentional or which the infringer may be oblivious of.
THE CHALLENGES OF ENFORCEMENT TODAY
While traditional enforcement mechanisms have proven effective to some extent, the emergence of digital technology has introduced new complexities in the enforcement of IP rights. Enforcing IP rights in the digital age presents a myriad of challenges ranging from online piracy to jurisdictional disputes, with anonymity emerging as a particularly thorny issue. As the internet facilitates easy sharing, trans-border interconnectivity, multiple data-sourcing, reproduction and access to digital content, creators and rights holders often find themselves grappling with the difficulty of identifying and holding accountable the infringers of their rights. The following are some of the underlying factors accounting for the difficulty in enforcement of IP rights as pertaining to online anonymity:
- Digital technology serves as a powerful tool which offers individuals various means to conceal their identities and activities. To begin with, the vast array of online platforms and services provide users the capability to establish anonymous accounts without providing verifiable personal details. Across various mediums, users can interact and engage under pseudonyms, or some form of unidentifiable identity. This makes it difficult for IP owners, enforcement agencies, authorities and IP owners to identify and locate infringers.
- Moreover, the proliferation of encryption technologies, anonymizing services and location diverting technologies further obscure online activities. Encryption and anonymizing technologies enable individuals to conceal their identities and evade detection while engaging in infringement. Location-diverting technologies, such as virtual private networks (VPNs), add another layer of complexity to IP rights enforcement by masking the geographical location of infringers. This makes it challenging for enforcement agencies to determine jurisdiction and coordinate cross-border enforcement efforts effectively.
- Again, the use of various internet tools and websites involve sourcing data from multiple points and the use of intermediary and third-party platforms. Some websites and file-sharing networks serve as a host of numerous actors or users who interact with the platform. This very nature of online activities itself present issues in tracing the exact origin of infringement and the true operators responsible for hosting and distributing infringing content. Intermediaries such as internet service providers (ISPs), online marketplaces, and social media platforms play a pivotal role in facilitating online activities, including IP infringements. However, the anonymity of infringers complicates the responsibilities of intermediaries in IP enforcement. While intermediaries can help mitigate IP infringements by implementing measures such as content filtering and takedown procedures, the anonymity of infringers makes it challenging to identify and act against perpetrators.
- Moreover, intermediaries may be hesitant to take proactive measures due to concerns about privacy and censorship, further exacerbating the challenges of IP enforcement. Sites like Megaupload and Rapidshare were notorious for hosting copyrighted content without authorization. These platforms until they were shutdown, allowed users to upload and share files anonymously, making it challenging for rights holders to identify and take action against infringing content effectively. Napster, a pioneering peer-to-peer file-sharing service, exemplified the challenges of enforcing IP rights in an era of digital anonymity. Despite legal actions taken against Napster by the music industry, the platform struggled to enforce IP rights due to the decentralized and anonymous nature of its user base, leading to the company eventually filing for bankruptcy in 2002.
- The anonymity of online infringers adds another layer of complexity to jurisdictional issues in IP enforcement. With the global nature of the internet, infringing activities can originate from anywhere in the world, making it challenging to determine the appropriate legal framework for enforcement. The anonymity of infringers further complicates matters by hindering efforts to trace the origins of IP infringements and establish jurisdiction, leading to jurisdictional disputes and inconsistencies in enforcement outcomes. The Silk Road, which was an online marketplace operating on the dark web from 2011 to 2013, presents an example of jurisdictional issues in IP enforcement. The Silk Road facilitated the sale of illegal goods and services, including copyrighted material, pirated software and counterfeit products. Operating anonymously, the company utilized technologies such as Tor and cryptocurrencies to evade law enforcement, posing significant challenges to IP enforcement efforts.
- Finally, challenges also arise in evidence collection. The IP owner’s country may not be in the position to access the data of another country. Proving infringement and gathering evidence against anonymous infringers is nearly impossible. IP owners face a giant hurdle in collecting sufficient evidence to support legal action without any knowledge of the true identities of the perpetrators. This undermines the ability of innovators, creators and rights holders to safeguard their works and enforce their rights in the digital age.
DEALING WITH ENFORCEMENT IN THE NEW ERA
Addressing the challenges posed by technology in IP rights enforcement, particularly in the realm of anonymity, require a multi-faceted approach that balances the need for privacy with the need for accountability and transparency. Below are proposed strategies aimed at enhancing enforcement capabilities and mitigating the impact of anonymity:
Utilization of Innovative Technologies:
- Embracing innovative technologies can significantly augment IP rights enforcement efforts. For instance, digital watermarking enables creators to embed imperceptible markers into their digital content, facilitating tracking and identification even if shared without authorization. Blockchain technology, with its decentralized and immutable ledger system, offers a means to establish ownership rights and trace the provenance of digital assets, enhancing transparency and accountability. Additionally, AI-driven content recognition systems automate detection and removal of infringing content, empowering rights holders to combat piracy and counterfeiting more effectively. This may involve strategies such as digital rights management (DRM), takedown notices, and anti-piracy measures.
- Furthermore, deploying tailored technological solutions is essential for combating anonymity. Advanced tools and algorithms capable of identifying and attributing IP infringements in anonymous online environments are crucial. Big data analytics and machine learning provide insights into infringement patterns, enabling adaptive enforcement strategies. Content recognition systems, such as YouTube's Content ID, automatically identify and manage copyrighted content uploaded by users, facilitating enforcement efforts and protecting creators' rights.
Legal and Administrative Measures:
- Strengthening legal and administrative frameworks is crucial for combating infringement in the digital era. This includes enhancing cross-border cooperation and coordination among law enforcement agencies to address jurisdictional challenges posed by online infringements. Through cross-border jurisdictional collaboration and agreements, access to data and IP address tracking as well as gathering of necessary evidence can be improved. Moreover, establishing clear and robust regulations governing the responsibilities of intermediaries, such as internet service providers (ISPs) and online platforms, can incentivize proactive measures to prevent and mitigate IP infringements. Additionally, streamlining legal procedures and enforcement mechanisms can expedite the resolution of IP disputes and ensure swift and effective enforcement actions against infringers.
Public Awareness and Education:
- Raising public awareness about the importance of respecting IP rights and the consequences of infringement foster a culture of compliance especially in the case of oblivious infringers. Educating consumers about the risks of consuming pirated or counterfeit goods reduces demand for infringing content. Providing resources and support for creators empowers them to navigate IP enforcement complexities and uphold their rights. For instance, campaigns and anti-piracy public service announcements can educate consumers about the impact of piracy on creators and the economy, discouraging illicit downloading and sharing of copyrighted content.
CONCLUSION
Throughout this article, the complexities of IP enforcement in the technological era, particularly the obstacles posed by anonymity have been explored and possible solutions have been advanced. While traditional enforcement mechanisms have been effective to some extent, the anonymity provided by digital platforms has empowered infringers, making it difficult to hold them accountable. Despite these challenges, there have been successful enforcement efforts, highlighting the importance of collaboration and innovative strategies. Looking ahead, it is essential for stakeholders to continue working together to address these challenges effectively in the bid to promote a culture of innovation and creativity. By investing in advanced technologies, fostering collaboration, education, and improving the legal structures, we can create a more resilient framework for IP enforcement in the digital age. Navigating IP enforcement in the technological era requires adaptability, innovation, and collaboration. By embracing these principles, the rights of creators and innovators can be protected while fostering a vibrant digital ecosystem for generations to come.
ABOUT THE AUTHOR
NANCY AMA SACKEY is a Part II Student of the Ghana School of Law and interning with SUSTINERI ATTORNEYS PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes, and Tax (www.sustineriattorneys.com)