A panel of leading international law experts addressed how international and domestic copyright law can adapt to the needs of researchers, libraries, technology entrepreneurs and their users at the American Branch of the International Law Association at Fordham Law School, New York, on Saturday October 12.

The panel addressed International Intellectual Property Law in the Age of Smart Technology and Intelligent Machines. The focus of the discussion was on how the proliferation of new transformative technologies, such as smart devices, Big Data and artificial intelligence, pose new challenges for the effective development of international intellectual property law.

Sean Flynn, Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law and chair of the panel, explained:

“Companies and academics seeking to use new technologies to search, index and data mine in ways that may make technical copies of copyrighted materials often lack clear rights to do so. Modern users often seek to find the permissions they need in copyright exceptions for research, or within the spaces created by limitations on the scope of copyright protection — such as in the idea/expression dichotomy. International law making forums have been slow to respond and are sometimes headed in the wrong way. The current revision of the Rome Convention in the form of a new treaty on broadcast rights, for example, currently proposes to eliminate a permissive exception for scientific research. The World Trade Organization is currently developing a potential instrument on ‘Digital Trade’ that may include norms in this area, but is so far stalled.”

The panel included:

  • Doris Estelle Long, Professor Emeritus of Law, John Marshall Law School, Chicago
  • Dr. Cheryl Foong, Lecturer, Curtin Law School, Australia
  • Dr. Michal Shur-Ofry, Associate Professor, Faculty of Law, The Hebrew University of Jerusalem, Israel
  • Peter K. Yu, Professor of Law and Communication and Director, Center for Law and Intellectual Property, Texas A&M University School of Law; ABILA Director of Studies and Co-Chair, ABILA Committee on International Intellectual Property
  • Joe Karaganis, Director, Open Syllabus Project

Professor Long opened the panel by explaining how copyright has always had a problematic relationship with technology. “Not every work created or embodying new technology necessarily needs to be subject to copyright protection,” she argued. She cited the strongest example of overextension of copyright to technological works as being the 1980 US Copyright Act Amendment that protected computer software containing a set of statements and instructions to bring about a result. She criticized the approach as negating the idea / expression dichotomy and moving copyright into the protection of processes better left to patent and trade secret law. The same problem is now confronting copyright and artificial intelligence, she stated.

“If you have an innovation that you want to protect  — go to patents. Let’s get these questions out of copyright so that copyright only focuses on what is it supposed to focus on — expressive communication. . . . What we did with software is a map of what not to do.  We need to consider the arguments and problems specific to the technology and create solutions outside the box of traditional responses.”

Cheryl Foong criticized the evolving US and EU consensus on defining the communication to the public right too much in terms of fault and harms to the market to the detriment of technological advancement. She called for copyright law to consider as broader range of non-market values, including consumer autonomy and freedom (how and when access content) as advanced via dissemination rivalries. These arguments are set out in book just published this month: https://www.e-elgar.com/shop/the-making-available-right  

Michal Shur-Ofry described the Robotic Collective Memory project, in collaboration with Prof. Guy Pessach,  published in a  forthcoming Wash. U. L. Rev. article , available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3364008 Collective memory refers to the joint recollection of the past by groups with joint identity, which is often promoted through collective memory institutions. Cultural memory institutions assemble documents, photos and artifacts that together draw the big picture of collective memory. The Robotic Collective Memory Project interviewed Holocaust survivors and integrated the content with artificial intelligence language processing software and visualization technologies to permit conversations between audiences and a robotic projection infused with the stories of the interviewees. A video of the project is available at https://www.youtube.com/watch?v=AnF630tCiEk. Technology companies are also increasingly entering the field, one example being the Google Cultural Institute.

Peter Yu presented on the “The Algorithmic Divide and Equality in the Age of Artificial Intelligence,” available at https://ssrn.com/abstract=3455772 Professor Yu identified the equality problems of algorithmic discrimination – “bias within black box.” Artificial intelligence can send wrong people to jail. AI can be racist (Microsoft’s chatbot learns racist discourse from Twitter). AI may not recognize color pigments. The problem is one of “garbage in garbage out — with biased training data and a self-reinforced feedback loop.” Good AI needs a large, comprehensive dataset. It is important not to exclude a sizeable segment of population.

Joe Karaganis described the Open Syllabus Project www.OpenSyllabus.org, which has mined nearly 7 million syllabi from universities around the world. The project crawls university websites and copies syllabi into a database. It enables mapping the world’s curriculum to identify what is taught and change over time.

On copyright, the project is based in the United States and “believes all we are doing complies with us copyright law.”  

“What we are mining is factual information not subject to copyright,” he explained. To the extend copyright may be applicable, the project is making copies for non-expressive uses of the kind approved of in the Google Books and Linked In cases. But, he explained, “we know less about how this looks when you are under a different country’s law.”

The panel discussed what international law in this area should provide. Japan’s recent law was raised as one positive example in expressly permitting use of data sets for processing. Singapore’s recent copyright reform report advises permitting any information available on the Internet to be used in education. The E-commerce chapters of recent trade agreements, and the E-Commerce agenda in the WTO, were raised other possible forums for protecting data mining rights.