Understanding Artificial Intelligence and Enforcement of Rights
With John Zacharia
In the June, 2021 edition of the BPP, I explored the European Union Intellectual Property Office (EUIPO) Study of the International Judicial Cooperation in Intellectual Property Cases report with leading authority John Zacharia who was an integral part of the study team. (See A Deep Dive into International Cooperation Tools for Brand Protection)
In 2022, John continued his work with the EUIPO as a member of United Nations Interregional Crime and Justice Research Institute (UNICRI) team that authored another key study:
Having received a high volume of “reads” of that previous interview, we decided to explore this new study through a similar Q & A format – but please be sure to click on the report in its entirety as it is a comprehensive exploration of this important subject matter.
Welcome AGAIN, John!
I think the first aspect I want to call out to the readers is the Definitions Section. It may seem strange to do so as definitions may be perceived as dry and a bit uninteresting, but new technologies bring new terms we need to understand. As such, we are all now dealing with new unfamiliar terms and acronyms. So I urge the readers to spend some time in that section or be sure to refer to it as you read through the content of the Study.
So, John, let’s once again do our best to break down important aspects of this Study for brand protection practitioners, starting with why was it important for the EUIPO to explore the impact of artificial Intelligence on IP in particular?
Although the concept of “AI” goes back to at least the 1950s, AI has evolved so rapidly that it has started to affect our everyday lives. Not surprisingly, AI’s rapid evolution impacts IP, too, and AI’s impact on IP will only increase in the near future. So, it’s to EUIPO’s credit that they commissioned a report analyzing AI’s current and future impact on IP at exactly the time when these issues are moving to the forefront for IP owners.
At its essence, AI technology could be characterized as a “prediction machine.” How useful and how effective that prediction machine will be depends principally on two things: the biases of the designer of the particular AI technology being assessed and the quality of the data fed into that prediction machine (i.e., the better the data, the better the predictions). Once a particular form of AI technology has been assessed and enabled by the data the AI technology receives, it is available for use. At this point, it is entirely up to the user (or in this metaphor, the “sword wielder”) how that AI technology will be used. Hence, the double-edged sword metaphor: AI can be designed and weaponized by criminals to facilitate IP infringement, but it can also be designed and utilized by law enforcement and IP owners to detect and to prevent IP violations.
As you indicated, the scenarios are divided into two storylines: one involving physical products and one involving digital content. In my view, most of the scenarios in the storyline focused on physical products (“Storyline α“ in the Study) would be both familiar and instructive to brand owners. For example, Storyline α’s various mass production, importation, physical marketing, and online marketing scenarios could easily be replaced by counterfeit or trademark infringing goods so that they become fictional scenarios involving “mass production of counterfeit goods,” “importation of counterfeit goods,” “physical marketing of counterfeit goods,” and “online marketing of counterfeit goods.” These are very familiar scenarios to brand owners and law enforcement alike. Indeed, some of these scenarios arguably arise in the real world more frequently in the context of trademark counterfeiting than in the copyright or design contexts. Most important, the discussion of how AI-enabled technology could be used to facilitate copyright, or design, infringement in these scenarios will generally apply equally to how this same technology could be used to facilitate trademark counterfeiting. The same would generally be true of these scenarios’ discussion of how law enforcement, or trademark owners, could use AI-enabled technology to detect and to prevent attempts to counterfeit trademarks.
Another broader point for brand owners to consider is that organized crime groups no longer need a group member who is a technology or cyber expert to take advantage of some of these AI-enabled tools. Today, cybercriminals have refined their methods to the point where they can make their work available to others through so-called “Cybercrime-as-a-Service” or “Crime-as-a-Service” (CaaS). This evolution of CaaS means that IP criminals can outsource the use of AI-enabled tools to facilitate their counterfeiting or infringing activity. In the course of preparing the Study, we also learned that some cybercriminals even take an “off-the-shelf” approach by offering all-in-one online toolkits that IP criminals who are less technologically savvy can purchase and use on their own to facilitate their counterfeiting activities.
AI-supported, blockchain technology is another AI application that the Study’s scenarios show could be used by IP owners. Brand owners could use such technology to secure a label, code, or image that would enable customers to verify the authenticity of a product. Brand owners could even choose to share this information with law enforcement to aid a criminal IP investigation.
Although the “threat” side of the double-edged AI sword tends to get the most attention, brand owners should not lose sight of the fact that they too could utilize AI to stop counterfeiters. I think the Study’s fictional scenarios crystallize how law enforcement and IP owners could use AI-enabled technologies. For instance, brand owners can use AI to identify and prioritize risks and even guide incident responses by using machine learning to analyze large amounts of data to detect counterfeiting threats. Brand owners can use the same AI technology to more efficiently scan images to identify sites selling counterfeit goods and detect patterns of counterfeit goods sales.
THE BRAND PROTECTION PROFESSIONAL | JUNE 2022 | VOLUME 7 NUMBER 2
2022 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES