30 May, 2018

A New Intelligence - UK House of Lords Releases Report on Artificial Intelligence

Artificial intelligence is absolutely a hot button issue these days, particularly with a focus on what's coming in the near and more distant future and AI's potential impact on people's lives (both in the good and the bad).  This writer is very interested in AI, having recently published an article discussed the same in relation to copyright, and in that vein was quite thrilled with the release of the House of Lords' report on AI last month. The report is very detailed and discusses many facets of the technology and its potential impact, but what potential recommendations does the report give from a legal perspective?

The Report (titled AI in the UK: ready, willing and able?) considers the development, implementation and impact of AI in the UK in the future, and recommends that the government take certain actions sooner rather than later. This article will endeavour to focus on some of the more interesting, potentially IP specific issues, and general law considerations.

A big point in the Report is the mitigation of risks associated with AI. Largely this relates to any assumed liability for an AI's actions, negligence or malfunction, which, as the law stands, is not covered. The Report does recommend that "…the Law Commission consider the adequacy of existing legislation to address the legal liability issues of AI and, where appropriate, recommend to Government appropriate remedies to ensure that the law is clear in this area. At the very least, this work should establish clear principles for accountability and intelligibility". Without accountability, one could imagine AI skirting liability, and causing potential issues for those wishing to pursue any damages resulting from an AI's decisions.

The consideration of liability ties into the matter of whether AI should be treated the same as humans, or have separate legal or non-legal entity status. For example, should IP rights be awarded to the AI, or the AI's creators (more on which here)? Both paths have their issues, but the Report fails to address this aspect in detail.

Another point of contention in the Report is the amassing of data by large corporations, which would therefore, in a way, control the development of AI and the marketplace for the same. The Report encourages that "…publicly-held data be made available to AI researchers and developers" to facilitate AI development for smaller players. Even so, it does highlight a need for "…legal and technical mechanisms for strengthening personal control over data, and preserving privacy" in the light of AI; however, this has been, at least arguably, largely achieved through the introduction of the GDPR this month.

A human future without TPS reports
In an attempt to kerb any misuses of data, or its monopolisation, the Report recommends that "…the Government, and the Competition and Markets Authority, to review proactively the use and potential monopolisation of data by the big technology companies operating in the UK". Clearly this might create a data competition framework, where companies with large swathes of data could be prevented from merging due to competition issues, or simply to prevent the centralization of requisite data for AI creation and/or operation.

The Report does discuss the IP issues with the development of AI in university settings, and the commercialization of research. As was discussed in the Hall-Pesenti Report last year, licencing of technologies could be problematic, and both the Report and Hall-Pesenti have sought to mitigate this. In this vein, the Report recommends that "…universities should use clear, accessible and where possible common policies and practices for licensing IP and forming spin-out companies", and that a policy should be drafted for Universities to enforce the same. Even so, Universities should be able to protect the know-how relating to AI, but within a reasonable framework.

Although not discussed in the House of Lords' report, the Hall-Pesenti Report also highlights a need for the reform of copyright in relation to data published in research, which would infringe copyright. This is problematic since "[t]his restricts the use of AI in areas of high potential public value, and lessens the value that can be gained from published research, much of which is funded by the public". In terms of reform the report suggests that "…the UK should move towards establishing by default that for published research the right to read is also the right to mine data, where that does not result in products that substitute for the original works". In terms of the development of AI this makes perfect sense, but when that data relates to human individuals, particularly in the light of the GDPR that just recently came into force, we should be cautious for giving AI free reign over all data. A balance needs to be struck with the interests of individuals, but the robust development of AI, provided the developments are for the public good.

As one can imagine, AI is a very difficult and potentially thorny subject, and there will be without a doubt many pitfalls we will end up in and will need to play catch-up with. Nonetheless, the potential of the technology could outweigh these issues, but maybe this writer is too optimistic in terms of AI's future.

22 May, 2018

Two Words Don't Make a Right - The Use of Two Consecutive Descriptive Terms for Goods not Distinctive as a TM

Many good things come in pairs, for example, shoes, ear plugs and twins, but sometimes even the best pairing won't be enough. This is the case even with trademarks, where the use of two terms that name or describe goods will be difficult to register. A recent case in the Canadian Trade-Marks Opposition Board considered this issue, and further highlighted that, even though a very novel argument, the marks themselves might not be as novel.

The case of Molson Canada 2005 v Drummond Brewing Company Ltd concerned a registration for the trademark "BEER BEER" (TM 1619343) for beer by the Drummond Brewing Company. Due to the quite clear descriptive nature of the mark, Molson Canada opposed the registration, even though it has been used for the goods in Canada since 2009.

The mark was opposed under sections2, 16, 12 and 30 of the Canadian Trade-Marks Act.

The Trade-Marks Opposition Board first considered the grounds under section 30(i), which requires a statement by the applicant that they are satisfied that they are entitled to use the mark in Canada in association with the relevant goods and/or services. The courts will only reject an application under the section if it has been applied for in bad faith. What plays a part in this is an earlier rejection for an application in 2009 for "BEER BEER" by Drummond Brewing due to the descriptive nature of the mark, which potentially indicates an element of bad faith for the new registration.

Donald's new beer brand: BEER BEER BEER BEER
Board Member Kathryn Barnett rejected this argument, as the provision only looks for an entitlement to use the mark, rather than any claims on rights to it. The Applicant's witness statements also indicated a clear belief in the entitlement to use the mark in Canada.

The Board then moved onto matters relating to section 12 of the Act, which prohibits the registration of mark if it, among other things, contains the name of the goods or services or that it clearly is descriptive of the quality of the goods or services relating to the mark.

The first ground under section 12(1)(c) for containing the name of the goods, i.e. beer, based on "…the immediate and first impression of the everyday user of the goods and services". This can include composite marks, including both a word and design element, if the portion of the word in the mark is dominant. The Board rejected this argument, as the mark is "BEER BEER", and not simply just 'BEER'. The name of the goods is simply the single use of the word, not double, and therefore escapes the remit of section 12(1)(c).

The Board then moved onto section 12(1)(b), which prevents the registration of clearly descriptive or deceptively misdescriptive marks from the point of view of the average consumer. The mark has to be assessed in its entirety as a matter of immediate impression to the aforementioned consumer. This is to prevent the registration of a common trade term for goods or services, placing legitimate traders at a disadvantage.

What lies at the heart of this decision is Pizza Pizza v The Registrar of Trade-marks, where the mark 'PIZZA PIZZA' was deemed to not be descriptive of the goods, namely pizza. Molson Canada contested that the phrase 'BEER BEER' would indeed be descriptive, which was, as discussed above, deemed so when applied for previously. The phrase would, in their view, describe a "…“real” or “prototypical” beer, or as a generic marking, or both".

The Board ultimately sided with the opponent, Molson Canada, and decided that the mark was indeed descriptive of the character or quality of the goods, and rejected the application. Due to this the Board deemed it unnecessary to consider the rest of the grounds of opposition.

The decision was an interesting one, and something this writer has never thought about; distinctiveness through the use of 'descriptive' terms in a novel way. While the decision makes perfect sense, it still shows that when you're creative with your marks, even the simplest thing could potentially (although not very often) be distinctive.

Source: JDSupra

01 May, 2018

Monkey Snap, Monkey Don't - US Court of Appeals Rules Out Animal Ownership of Copyright in Monkey Selfie Case

The rights of animals, whether it is simply to extend human rights to them or even legal rights, are a very contentious and often emotionally charged topic of conversation. A good example of this is the recent monkey selfie legal saga, which grappled with the vesting of intellectual property rights in a monkey (discussed more on this blog here and here). The parties settled the matter out of court late last year, but the Court of Appeals saw to still rule on the matter, irrespective of this settlement (which is within their powers to do). This is very important, since it will set the legal position of animals' rights in IP firmly on one camp; yes or no. This writer has been waiting for the ruling with baited breath, which was published only last week.

By way of a brief primer, the case of Naruto v David Slater concerned a series of photographs taken by a crested macaque in 2011 (named Naruto by its Next Friends in the litigation, PETA). The monkey took the photograph using Mr Slater's camera, which he had configured and left for the monkeys in the area to play with. One such picture became an Internet sensation, leading to Mr Slater asserting his rights in the picture as its author. PETA took the matter to court, claiming the monkey had rights in the picture, and that Mr Slater had infringed its copyrights by publishing it. Even though the parties settled the matter, as discussed above, the Court saw it fit to decide on it anyway due to its importance as a developing area of the law.

Naruto's representatives were aghast at the ruling
Judge Bea, handing down the majority's judgment, started off with determining whether PETA could represent Naruto as its next friends in the case. This is established through showing that "…(1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner". The Court agreed that Naruto would indeed fulfil the first requirement, but needed to assess whether PETA had a significant relationship with the animal. PETA agreed that it had does not claim to have a relationship with Naruto that is any more significant than its relationship with any other animal, and thus fails the second requirement.

The Court emphasised that animals do not have authorisation by the courts to be represented by a next friend. In other words "…if animals are to be accorded rights to sue, the provisions involved therefore should state such rights expressly".

Judge Bea then moved onto the matter of whether Naruto itself has standing under Article III of the Constitution. Under a previous Court of Appeals decision in Cetacean Community v Bush, the court rejected standing for "…all of the world's whales, porpoises, and dolphins" under environmental protection laws as animals were not expressly included within the provisions. In short, the court concluded that the test for animal standing as "…if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing".

Under the Copyright Act there is no express mention of any animal rights for intellectual property. The provisions do, however, imply a requirement of humanity or the possibility of marital relations. The Court did conclude that, based on the statute and the Cetacean decision, "…that Naruto - and, more broadly, animals other than humans - lack statutory standing to sue under the Copyright Act".

The case is a very important one, not only for the unusual nature of judgments being issued after settlement, but it puts the rights of animals under copyright to bed once and for all. Clearly, animals cannot have rights, and this writer considers this to be the most logical outcome, even without an express mention to that effect in the legislation. One can therefore finally see a conclusion to all of this monkey business.