We are gearing up for London IP Week, happening from December 11-12, 2024, with a series of Insights from IP experts. The IP landscape is evolving rapidly with digitalization and the growth of Web3 and AI, posing challenges to in-house IP and legal professionals. How can in-house teams prepare to better address these challenges?
In Volume 1 of our series, we feature Mykola Antoniuk, Legal Manager for Product Operation at MacPaw, the software developer behind CleanMyMac X, Moonlock, and Encrypto. In this role, Mykola collaborates closely with product development teams by assessing legal risks related to new initiatives, addressing existing issues, and providing support during the launch of new products. He offers legal support for MacPaw’s AI solutions and initiatives, advises all internal teams, and conducts training on various legal matters including IP, e-commerce, consumer law, marketing, media, and civil law. Additionally, he manages and protects the global IP portfolio, conducts trademark screenings, handles IP clearance, and prepares the company for SOC 2 and ISO/IEC 27001 certifications.
Mykola shares his valuable insights into the evolving IP landscape and offers guidance on how in-house teams can effectively leverage technology to protect copyrights and trademarks. Mykola will also join us this December as a speaker at London IP Week. Read his full interview below and don't forget to register for London IP Week and meet Mykola at our conference!
What do you see as the most significant global trends and challenges currently impacting the IP landscape, and how should IP professionals prepare to address these issues?
Rapid technological development has significantly affected the IP law landscape. From its very emergence, intellectual property has been influenced by and intrinsically connected with technological progress. Thus, this impact is not surprising. Nevertheless, legal development lags far behind technology. Web3 (blockchain), AI, and the metaverse pose great challenges to IP law.
Web3 seems to function normally within the existing IP law landscape with minor legislative adaptations. The metaverse presents perhaps the biggest challenge to trademark law, but the Nice classification system appears to be flexible enough for updates (such as those for Web3 in 2023). Therefore, similar adaptations might be made for the metaverse.
While the current IP landscape might be adaptable to the metaverse and Web3, AI creates numerous issues for IP law, questioning the very rationale of copyright and inventorship in patent law. We’ve already seen writers’ strikes in Hollywood, courts flooded with claims from creators, and massive layoffs. These facts indicate that new legal regulations are required for the new societal order.
We already see that many countries are debating or have already updated their legislation to include provisions related to AI-generated works. For example, Ukraine introduced sui generis protection for AI-generated works; French lawmakers presented a draft law that allows for copyright protection of AI-generated works; while in a recent U.S. court decision, the court declared AI outputs ineligible for copyright protection. This divergence poses another threat: while we’ve seen some harmonization of IP laws over the last decades, countries are now taking divergent approaches.
Thus, IP professionals should be ready to:
Embrace uncertainty.
Adapt on the go.
Keep abreast of legislative developments.
How important is international collaboration and harmonisation of IP laws and regulations, and what steps do you think are necessary to achieve greater alignment across different jurisdictions?
Managing and protecting the global IP portfolio at MacPaw, a Ukrainian-born software company with over 30 million users in more than 180 countries, my biggest dream is harmonized IP regulations. Our products are available globally (as is most software nowadays), but the protection of IP is territorially limited, which is inefficient in terms of time, budget, and effort. Additionally, the approaches to IP enforcement can be so divergent that enforcing the same right in different jurisdictions can result in completely opposite outcomes. So yes, I think international collaboration and harmonization of IP laws are crucial. Luckily, we have treaties like the Berne Convention and the Paris Convention, which have eased our burden somewhat. Nevertheless, they are not enough for the modern IP legal framework. Ideally, harmonization would be achieved through a global treaty, but that seems unlikely in today's reality. Thus, I think the ways to achieve such harmonization are:
Through more bilateral and multilateral agreements between countries:Â free trade agreements often contain IP law obligations that harmonize the IP laws of the parties to those agreements. For example, the EU-Japan Economic Partnership Agreement requires parties to harmonize their IP laws; Ukraine has also changed its laws to align with the EU under the Association Agreement between the European Union and Ukraine.
Through regional treaties:Â The EU is exemplary in this regard. The way the EU harmonizes IP law is astonishing. The Trademark Regulation and the European Patent Convention, along with the establishment of the Unified Patent Court, are great examples of such unification/harmonization. Harmonization of copyright law is also at a great level through directives. However, this process often results in different national transpositions. . It would be better to harmonize it through regulations rather than directives. Hopefully, in the near future, the copyright law in the EU will be unified or at least codified
Through introducing extraterritorial provisions:Â Similar to those in the GDPR, DSA, or AI Act. Though it will be more difficult to achieve this due to the territorial nature of IP rights.
In what ways are emerging technologies, such as artificial intelligence and blockchain, influencing the IP field, and how should IP Professionals adapt to these technological advancements?
Honestly, I still haven’t fully utilized AI or blockchain for IP management and enforcement. I have only observed AI in action for detecting IP infringements, which was impressive but, in my personal opinion, still requires human oversight. From conversations with colleagues, I gather that they are impressed with AI-driven tools that are indeed transforming patent searches and analysis through faster, more comprehensive prior art searches, predictive analytics for patent approvals, and automation of IP management tasks. In terms of blockchain, smart contracts could be useful for automating IP licensing and enforcement, as we might already see in some NFT markets. Therefore, to adapt, IP professionals must embrace these technological tools and develop skills in AI and blockchain. However, I believe that interdisciplinary collaboration will be most crucial for IP professionals to stay relevant and provide value-added services in this rapidly evolving landscape.
What are the most effective strategies for enforcing IP rights on a global scale, particularly in combating issues like counterfeiting, piracy, and infringement?
I believe it is hardly possible to enforce IP rights globally entirely in-house nowadays. Therefore, my first recommendation for an effective strategy is to find a brand protection tool that you are comfortable with. At MacPaw, we have several products, three of which (CleanMyMac X, Setapp, ClearVPN) face thousands of infringements committed by third parties per month. A brand protection platform helps us immensely in detecting and enforcing these infringements.
The second point is the importance of close collaboration with the marketing team. Let's be honest, when it comes to counterfeiting and piracy, marketing teams are often more effective than lawyers at detecting infringements, seeing alternatives, and knowing all our partners. That is why, for effective IP enforcement, I recommend involving the marketing team or at least asking them to conduct training or provide instructions for lawyers. At MacPaw, we, as a legal team, work closely with our marketing team on brand protection, using the brand protection platform with a strict division of responsibilities. And now it is probably high time to confess my love to our marketing team. It is such a pleasure to work with them.
We still combat many IP issues manually in-house, especially when dealing with more complicated issues or when online platforms require mediation (such as the Apple Store or Google Play). You would be surprised how elementary politeness and simplified language can save time and ensure the same outcome in these cases. I was surprised too! So, try not to go completely legal.
Finally, my last point for a successful strategy is educating your teams. Conduct training sessions, provide guidelines on how to spot and enforce infringements, show them how you enforce them, and bring them closer to the legal process.
What do you predict for the future of IP management and protection over the next decade, and what innovations or changes do you believe will be most transformative for the industry?
We will undoubtedly see an increased use of AI and automation, particularly in patent and trademark searches, which will likely be transformative for IP professionals. The Digital Services Act will also lead to the enforcement of IP rights through online dispute resolution, known as out-of-court dispute settlement, potentially creating a new sub-industry. The "trusted flaggers" system might bring significant changes to the market for online brand protection platforms. Web3 could play an interesting role in the IP field, though its impact is still uncertain. For instance, blockchain technology might offer a secure and transparent method for recording and verifying IP ownership, thereby reducing disputes and increasing trust in IP transactions. Smart contracts could automate and enforce licensing agreements, royalty payments, and other IP-related transactions, ensuring compliance and minimizing administrative burdens.
How do you navigate the complexities of obtaining and enforcing patents on a global scale, and what strategies do you recommend for overcoming jurisdictional differences?
As MacPaw is a software development company, we do not interact with patents as extensively as some other companies might. Therefore, I may not be the ideal person to address this question. However, based on my experience, I would recommend the following: 1) developing a patent strategy, identifying the most important markets, and obtaining patents there; 2) utilizing the Patent Cooperation Treaty and regional patent systems (like the European Patent Convention); 3) engaging local patent attorneys with experience in your industry and the ability to communicate effectively with your R&D team.
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