The new Digital Revolution and Intellectual Property

The last five years have been incredible for technological progress in areas that previously seemed like something out of science fiction, where, for example, the average computer user was thought to be completely incapable of communicating with a computer and having a conversation, let alone passing the Turing test.

Every year, every day, more progress is made in terms of Artificial Intelligence, digital worlds, blockchain, crypto assets, this whole world that most of us can only aspire to understand how it works, how the human mind can be so brilliant as to find new doors and windows of opportunity even in the cracks.

Regardless of the divided opinions that exist about the environmental repercussions, the way in which Artificial Intelligence feeds on information, which is a topic for another time, it is undeniable that this technology is advancing much faster than many of us can keep up with.

These new technologies open up thousands of opportunities that, for those seeking to promote their services, to position themselves in these new, unexplored spaces or to ‘discover America again’, opens a huge gap. The reality is that, with each passing day, there is an opportunity to exploit, from a purely commercial point of view, new technologies generate new opportunities, and opportunities generate the need for protection.

Intellectual property, as a branch not only of law but of humanity, is an area responsible for the protection and safeguarding of human creativity, for the protection of thought embodied in the practical and supportive world, allowing each individual either to distinguish themselves in the market, to recognise the authorship of a work or to protect and profit from what is created and practical in the contemporary world.

It is not illogical that what was so fashionable a few years ago, such as NFTs, what is now on people’s minds and in cyberspace such as the protection of ‘art’ created by artificial intelligence, that digital worlds such as META and its digital assets that can be considered protectable or the use of brands within those worlds, are a constant dispute and are always in the eye of the media hurricane , because it is very easy to go to an international news link and find information about authors’ lawsuits against OpenIA, or about the lack of protection for artists against the acquisition and use of databases to "create" art by artificial intelligence.

It is clear, then, that these new opportunities will come with their share of ups and downs, like any revolution, with arguments for and against these changes. But regardless of one’s point of view on this, it is inevitable that some comments or considerations will have to be made, depending on how one wishes to see the contemporary world and how it governs what interests us, the protection of our intellectual property.

Having said that, it is important to consider the following:

- Territoriality is still a much-discussed issue in the digital world. While some of these, such as ROBLOX, the world of META and FORTNITE, are specifically bound by certain terms and conditions that are tied to specific legislation, many others, less explored and a little freer, argue about judicial independence in the digital world. Therefore, the defence of rights is going to depend, first, if we are clear about it, on the place determined by the digital world, and second, if it is a little more diffuse, on the litigation capacity of our lawyers to tie it to a specific place.

Issues such as trademarks and patents, whose protection depends specifically on territoriality, are still quite complex topics of discussion. Is my trademark registered in Guatemala protected in the digital world, whatever that may be? Is it then legal that, for example, my trademark is used for commercial purposes in the digital worlds without my consent, if this practice is outside Guatemalan territory?

- Can a ‘creation’ by Artificial Intelligence be considered a trademark, patent or any other element that, due to its characteristics, is distinguishable in commerce?

It is worth mentioning that there are currently different types of artificial intelligence. Unless the author is unaware of it, there is not yet an artificial intelligence powerful enough to create content, but simply to collect and, by means of algorithms, provide a response based on a given database.

- How can I, as a Guatemalan, enforce my rights against violations of my intellectual property committed by artificial intelligence as well as in digital worlds?

Questions like these, and others that have to do with, for example, free competition, with the way of entering markets that are not regulated by state entities but merely by private organisations that can privilege others within these new digital mechanisms, as well as the high cost of entry and the specialised labour required to be able to form part of the distribution market of these new technologies.

Regardless of these scenarios, which will definitely have to be taken into consideration, the opportunities exist to exploit a market that until now has remained hidden from most and that could be, depending on how it is used, a real gold mine, be it digital or real.

alegalis.com

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