How rapid technological progress is transforming the IP property landscape

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Now, more than ever, there is a need for an IP strategy with strong governance principles for every business, regardless of size and industry.

These are the views of Dentons South Africa’s Intellectual Property team, Muhammad Patel and Amaarah Kapdi, who say that there is no doubt that data and IP have become extremely valuable.

“If you are a company, it is easy to collect information from others, allowing the company that collected the data to use it to its benefit,” says Patel.

Patel uses the example of online retailers, such as Amazon and Takealot, which use online users' shopping habits to inform how they target consumers and this, in turn, helps them develop their strategies.

“Bringing AI into the equation complicates matters further, especially given the rapid advance and use of this technology,” says Patel. “It does have distinct advantages, such as its ability to track assets and identify when intellectual property has been breached – which could come from AI solutions such as Bard, Google’s offering, or ChatGPT.”

Blurring the lines

Reports suggest that AI models are trained on a body of created work that is already online, and it’s not clear yet what the legal precedent may be for reusing this content if it is taken from others’ IPs.

Take, for example, The New York Times’ lawsuit against AI offerings, such as Bard and ChatGPT, for using content without permission. 

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The matter took a strange turn when publishers signed deals with AI companies, paying millions of dollars to protect their content through referrals back to their websites.

“The risk, however, is in protecting intellectual property when it is breached in another jurisdiction because there are often no clear rules around dominion given that data knows no borders, while IP traditionally used to be resident within clear geographical lines.”

Kapdi explains that because there is a broad consensus regarding the possible impact of unregulated AI, governments worldwide are busy developing policies to mitigate this risk.

Africa and South Africa

“Several African jurisdictions have taken steps to address this unique policy challenge, with various African countries implementing AI strategies, others still in the process of consultation with stakeholders on AI policies, and some African countries yet to make any pronouncements on their approach towards AI regulation.”

However, this covers the broad aspects of AI and is not specific to IP.

Currently, South Africa does not have regulations and uses data protection laws, such as the Protection of Personal Information Act PoPAI), to protect data.

Managing data with an IP strategy

“Digitised IP management tools help protect against IP-related data that could well otherwise be infringed, especially if it is easily available on the World Wide Web, because a trademark hasn’t been updated, or the patent has expired,” explains Kapdi.

Such reliable tools protect assets against potential loss or legal complications.

“Digitised IP management tools improve the efficiency and streamlining of the IP practice in South Africa, but they are just one aspect that needs to be brought into an IP strategy. Every company needs such a plan, no matter how big or small they may be,” says Kapdi.

Patel and Kapdi explain that an IP strategy, which ensures that governance is in place, must include aspects such as data management to ensure that copyright is thoroughly protected.

As part of this, companies need to ensure that they update their trademarks far more often than what was typically the case in terms of 10 yearly reviews, which is an aspect with which a governance strategy can assist.

“Used correctly, AI to assist with IP can be a massive help. However, the associated risks to companies’ mission-critical data need to be carefully managed through a comprehensive strategy that includes all the potential legal implications,” concludes Patel.