The influence of Intellectual Property and the challenges it faces

By: Gabriel Castillo

Every April 26th is celebrated worldwide as Intellectual Property Day. This celebration was officially established in the year 2000, however, its raison d’être dates back much earlier.

The celebration was decreed by the United Nations and was particularly set aside on April 26, taking into consideration the date on which the WIPO Convention came into force, the international instrument by means of which the World Intellectual Property Organization was officially created in 1970. It should be noted that, although the date of entry into force was retained, the instrument first saw the light of day in the form of an agreement in 1967, and, according to WIPO’s historical information notes, was the fruit of five weeks of arduous negotiation during a conference held in the halls of the Swedish Parliament in Stockholm.

Throughout its history, WIPO has worked hard to develop an international intellectual property system that fosters innovation, creativity, and equitable access to the benefits of intellectual property. This is congruent with this fundamental celebration, which since its inception has had as its main motivation to highlight the importance of Intellectual Property in the modern world, creating awareness of the relevance of protecting the creations of the human intellect through copyright, as well as to emphasize the respect and dissemination of the rights comprised by Intellectual Property.

According to the purpose of the celebration, in this brief article we will share with your notions about the influence/presence of Intellectual Property in certain industry, and we will also make reference to some challenges that it faces and will face in the years to come, as a result of the technological advances of the human being.

For this purpose, we have taken the sports industry as a reference, and as for the challenges, we have taken Artificial Intelligence as a reference.

Intellectual Property in Sports

Intellectual Property (IP) is an important aspect of the sports industry as it provides a legal framework that allows sports teams, athletes, and sports organizations to protect their commercial rights and interests. Trademarks, patents, copyrights, and related rights are the main types of IP rights commonly used in the sports industry.

Although the legislation of each jurisdiction may vary, it is valid to state that trademarks are the most common element of Intellectual Property in sports. Tennis, boxing, soccer, soccer, American soccer, basketball, baseball, and motor sports, to mention a few, all involve the protection of trademarks (and other distinctive signs) and the use of these, either by authorized third parties or by themselves.

Trademarks, emblems, trade names and slogans or advertising signs allow federations/associations, sports organizations (clubs) and even the athletes themselves who develop the sport, mainly: to commercially exploit that which identifies them, and at the same time, to bring actions against those unauthorized who seek to obtain some economic benefit to the detriment of their rights, confusing or misleading the consumer public.

Players in these sports disciplines usually register their signatures, their initials combined with the number they wear, some have even gone so far as to attempt to register their name, and in certain jurisdictions, such as the Island of Guernsey, the opportunity to register their image in an Image Right Registry has been opened. Example of these: Paul Pogba has registered his image/character (likeness) on the Guernsey Register, Lionel Messi and Cristiano Ronaldo have registrations in various countries of trademarks consisting of their initials such as LM10 and CR7, Usain Bolt also has figurative and word registrations such as icons of his famous pointing pose and the slogan “Bolt to the World”.

As for sports federations and organizations, we have, for example, the famous brands of each discipline such as FIFA, NBA, NFL, MLB, F1, or their own competitions such as FIFA World Cup, NBA Finals, SuperBowl, MLB World Baseball Classic and World Series, Formula One World Championship Limited.

However, beyond the notoriety and distinctiveness they bring to each discipline in the mind of the consumer/spectator, they are vital for sponsorship agreements, official digital products licensed by such brands, and official merchandising. They have also been the ideal vehicle for athletes and sports organizations to earn money outside of purely sporting activities, even being, at times, the commercial agreements that bring them the most revenue. A clear example is the sportsman Roger Federer who is the official ambassador of the luxury watch brand “Rolex” and has been among the athletes with the most money precisely thanks to agreements with his sponsor.

In reference to invention patents, utility models or industrial designs, they have their relevance and connection to the sport behind the main stage since manufacturers and marketers of sports equipment are usually the main interested in acquiring them to protect their creations and innovations that help to improve the sport or the performance of the players. As an example, we can think of the protection sought by companies such as Adidas or Nike when they develop some technology applied to the sports equipment they manufacture and sell, such as Boost technology, PrimeKnit or ForgedMesh by Adidas, or Flyknit, VaporFly, by Nike.

Finally, on the copyright and related rights side of sports, we will think about the broadcasting/broadcasting rights that are legally acquired or must be acquired in order to broadcast content associated with sporting events widely expected by consumers. For example, the NBA holds copyrights on all broadcasts and highlights of its games, which allows it to control the use of this content and prevent others from using it without authorization. In this facet, from many years ago to the present day, it seeks to fight against illegal or unauthorized retransmissions. 

Artificial Intelligence (A.I.) and Intellectual Property 

Regarding Artificial Intelligence, hereinafter A.I., although humans have been working on it for many years, we can state with certainty that in the last 6 months it has had great diffusion and has been exposed with greater magnitude to the general population, being more accessible to generate content assisted by some A.I. tool, with great precision and free of charge. As of November 2022, it has been a notorious and recurrent topic in different media, social networks, blogs, etc. What is surprising is the precision, speed and knowledge with which A.I. tools generate content.

ChatGPT, a tool that defines itself as an artificial intelligence language model developed by OpenAI, based on the GPT (Generative Pre-trained Transformer) architecture, capable of generating answers and maintaining conversations in several languages, using its previous knowledge acquired through training with large amounts of text from different sources on the web, and can be used in several use cases, such as customer support, virtual assistants, chatbots, among others.

ChatGPT has generated so much curiosity and has gained the attention of various sectors, to the point that it is already being used to learn how to program, solve doubts about programming, as a virtual assistant, search engine, planner, tool to generate writing models, translator, among others. It has been used in the education sector (it has been tested with various entrance exams to the profession as the U.S. medical exam), in the judicial field (a Colombian judge was helped to develop a sentence), in the field of technology (developers constantly use it for doubts about their code), to name a few.

However, ChatGPT is not the only A.I. tool used to generate content. Other tools with different purposes coexist around it. ChatGPT is based on text, however, there are other resources such as DALL-E2, Midjourney.AI, Stable Diffusion, Deep AI, Art breeder, whose function is to generate images or digital art, with high resolution and in a short time, all because of the instructions of whoever is using the tool.

The existence of these A.I., besides generating uncertainty about a hypothetical impersonation – in the future – of humans and their creativity in different professions and occupations, also causes problems at a legal level, largely in the field of Intellectual Property, particularly in copyright law.

Specifically, this represents a challenge in terms of the regulation and protection that will be offered to creations in which the human has not been responsible for the content generated, since its function was probably limited to turn instructions and / or press a button. In general, currently the legislations of different countries do not foresee the possibility that an “Author” owner of a work/creation is a program or a computer.

Congruent with this and situating ourselves in reality, our Law 312, Law on Copyright and Related Rights, in its definition of author necessarily refers to a natural person, since it states that author is the “Natural person who creates any work, whether literary, artistic or scientific”; it is worth mentioning that in later provisions of the same law, it also refers to legal persons as subjects capable of holding these rights, but we return to the fact that natural persons are involved, and it is not contemplated – at least for now – that a program or a computer can be the author of works.

As time progresses, criteria will be put forward that will provide a generalized consensus on what is the best practice to guarantee protection for this type of content, however, experts and academics in the field broadly anticipate two options:

“Copyright law can treat works in which human interaction is minimal or nonexistent in two ways. It can deny copyright protection to computer-generated works, or it can attribute authorship of such works to the creator of the program” (Guadamuz, 2017).

The truth is that there are no absolute answers or one that applies to all cases equally, nor is it the objective of this article to adopt one. Perhaps, the ideal is that the cases are attended to individually, attending to their circumstances, aware that the situation, context and implications differ and therefore cannot be solved in a standardized way.

Thank you for reading this article about Intellectual Property. Whether you are an author, inventor, entrepreneur or simply a reader interested in learning more about Intellectual Property Law, we hope you have found the information informative and valuable.

If you have any questions or doubts about Intellectual Property issues, we invite you to contact us.