For the past few weeks, human creativity and innovations were accentuated and reflected upon across the globe as we celebrated World Intellectual Property Day (WIPD) on April 26 and World Telecommunication and Information Society Day (WTISD) on May 17. Incidentally, both international days this year spotlighted progress made so far and the roads ahead in advancing sustainable development and prosperity.
WIPD’s 2024 theme, “IP and the SDGs: Building Our Common Future with Innovation and Creativity”, and WTISD’s 2024 theme, “Digital Innovation for Sustainable Development”, offered us the much-needed fora to rethink and harness the power of intellectual property and digital innovation in achieving the 2030 Agenda for Sustainable Development – first adopted by all United Nations member states in 2015 as the blueprint for peace and prosperity. With only 15% of the SDG progress currently on track, the urgency to remediate is high. The 17 Sustainable Development Goals (SDGs) should be taken further into account and align better with various social and economic developments as we continue to make innovation and creative policy work for development.
In the fifteenth issue of NetMission Digest, we look over the latest copyright discourses at the intersection of creativity, innovation, and sustainable development as technology advances across the digital and virtual realms.
Asia’s State of Copyright
On the occasion of WIPD, the Office of the United States Trade Representative (USTR) published its annual Special 301 Report to review the state of IP protection and enforcement between the U.S. and its trading partners. As the world’s only publicly available annual government Report focused on examining economy-specific states of copyright (along with other types of IP), the Special 301 Report is a timely instrument for highlighting key IP governance (in)efficiencies and efforts to crack down on IP infringing activities. In particular, the Office identified China, India, Pakistan, Russia, Thailand, and Vietnam had high levels of online piracy and lacked effective enforcement; stream-ripping was reportedly popular in South Korea and Russia; while the illicit streaming device (ISD) and illicit IPTV app markets are considerable in China, Hong Kong S.A.R., India, Indonesia, Singapore, Taiwan, Thailand and Vietnam.
Special 301 Reports set the basis for IP conversations with a focus on broadcast and online piracy. Yet, a closer look at copyright issues emerging across digital and virtual realms is increasingly important, especially with the latest advancements in generative artificial intelligence (GenAI), the metaverse, and social networks.
Copyright and GenAI
As GenAI officially takes off following the launch of ChatGPT by Open AI in November 2022, the discussion on rights sparked controversies as the technology of GenAI by nature is to generate text, images, videos, or other materials based on prompts and pre-existing data including copyrightable assets.
Adding on to the stack of longstanding copyright debates, GenAI works ignited debates extended from derivative works, text and data mining (TDM) and fair use, and beyond – from the copyrightability of AI-generated works and the extent of protections, the rightsholders (owners and authors) of AI-generated works, the involvement of AI technology and human in the content generation (output) and training of AI models (input), to the liability of copyright infringement of AI-generated works.
These controversies have led to lawsuits of all sizes, from lawsuits between individuals (e.g., Li v. Liu in Beijing) and businesses (e.g., Tsuburaya Productions v. Shanghai Character License Administrative in Guangzhou), to class-actions (e.g., Andersen et al v. Stability AI Ltd. et al in San Francisco) and between global conglomerates (e.g., The New York Times Company v. Microsoft Corporation in New York). On the other hand, Big Tech/AI companies have been proactively formulating licensing deals with publishers, such as Open AI with Axel Springer and The Financial Times; Microsoft with Informa and several journalistic organizations, and Google with Reddit and News Corp. Apart from lawsuits and commercial partnerships, the discussions at the intersection of copyright and GenAI have led to policy considerations and government initiatives across Asia, including Australia, Japan, South Korea, India.
Outcomes of these legal and policy discussions shall future-proof AI and IP governance to protect rightsholders. This is necessary as we see the capability of GenAI, among other opportunities, might lower the (technical) entry barrier to conduct copyright infringing activities – from using GenAI tools such as ChatGPT to write codes and scripts to infringe works or support the pirate business, all the way to the possibility of generating Advanced Encryption Standard (AES) keys to decrypt copyrighted materials for pirates’ exploitation. The navigation of these IP considerations shall continue as AI technologies evolve and furcate.
Copyright in the Metaverse
Looking beyond the boom and bust of Non-Fungible Tokens (NFTs), the bubble of blockchain-powered digital assets surfaced and left a trail of questions about rights issues in the broader metaverse – a network of real-time rendered virtual space where users can interact with digital assets and properties, as well as other users across various physical devices and immersive technologies. The Facebook-Meta rebrand also hyped the metaverse mania.
Copyright and other intellectual property have become front and center as ownership discussions arise, specifically when it comes to assets created in the metaverse, how rights in the physical world extend into the virtual world, and the infrastructure of the metaverse (e.g., source code of software and computer programs).
As NFTs and much of the metaverse rely on blockchain technology, the pseudonymous and decentralized features pose major challenges when it comes to traceability and ease of attribution (for copyrightable materials), as well as the overall intellectual property governance and enforcement across host platforms and different parts of the virtual and real worlds under this expanded concept of territory.
Putting up clear Copyright Notices and detailed Terms of Services is a widely encouraged preemptive practice to specify the usage rights and liability of works. The extended applications of Digital Rights Management (DRM) and Copyright Content Moderation (CCM) technologies in the metaverse have also been increasingly adopted by rightsholders, community managers, and platform operators to crack down on infringements and unauthorized use of copyrightable materials amidst ambiguity of laws. DRM encompasses Rights Management Information (RMI) and Technological Protection Measures (TPM) such as watermarking and encryption, while CCM has the capability to identify, assess, and filter materials that are deemed to infringe the intellectual property rights of another person.
With these anti-piracy strategies developed in the real world (i.e., digital watermarking and pirate site-blocking via court injunctions) extending to the virtual world, how they are effective on the metaverse rely on self-governance by operators and platforms as this transcends the current jurisdictional enforcement mechanism. In the meantime, governments have been finding a suitable and sustainable position to be in the metaverse.
As the focus shifts to developing the industrial metaverse under the post-hype era, copyright protection will only be more important for its economic significance. This is especially crucial with the blossoming discussions and innovations of the latest AI technologies, not least how the evolution of GenAI could revive the NFT market and transform the metaverse.
Piracy across Social Networks
Focusing on pirated motion pictures in 2024, the prevalence of this long-standing issue can be attributed to the emerging methods of transmission and distribution of videos over the Internet. Evolving from distributing bootleg videos via DVDs and peer-to-peer (P2P) file-sharing networks to disseminating pirated materials over websites, apps, and illicit streaming devices (ISDs), piracy over social networks has become popular in recent years.
A YouGov survey commissioned by the Asia Video Industry Association (AVIA) in 2024 indicated the consumption of pirated content over social media and messaging platforms in Asia has risen by 14%. Among these platforms, Telegram has been the most prominent medium for streaming piracy because of its pseudonymity and end-to-end encryption features. After years of tussles with various rightsholders and governments, Malaysian Communications and Multimedia Commission (MCMC) Minister Fahmi Fadzil stated this month that Telegram expressed its willingness to work with governments to combat digital piracy on the service. The outcomes of such a development are to be seen. (See also: WhatsApp)
Apart from using social networks as the hub to disseminate pirated content to consumers, pirates have also been posting a series of consecutive movie excerpts on their social media accounts for consumption by their subscribers or general users. A 2022 report on Piracy and Digital Content Consumption Habits showed that while 84% of surveyed (European) Internet users mainly search illegal content through Google (Search), 27% of all respondents browse through social media services. This is exacerbated by the rise of short-form videos along with the growth of TikTok, where pirates will upload hundreds of short clips in sequence to their accounts. Even when social media operators have occasionally taken actions against infringing content and established mechanisms to detect and protect copyrighted materials, the rampant spread and overwhelming volume of pirated user-generated content (UGC), along with all other harmful content”, pose challenges to effective deterrence and management.
It is also worth mentioning some of the latest technologies that pirates are exploiting to ensure they are one step ahead of the enforcement and other anti-piracy efforts to maintain their economic viability. Enforcement authorities are aware of such a trend and have also been stepping up gradually to crack down on pirated content services in the metaverse and transactions using cryptocurrencies and virtual assets for pirated content. Yet, the cat-and-mouse game will likely continue as long as there is market demand for pirated content.
Epilogue
While copyright controversies and infringing activities evolve with technological advancements, one should not perceive technology as an application that would inevitably stifle human creativity and undermine ownership and authorships. Rather, innovations including GenAI, the metaverse, and social networks possess the ability to push for a more robust and efficacious IP infrastructure that was first established in 1710. Some challenges that arose from those technologies, in some sense, might fuel and invigorate the refinement of existing copyright and other IP laws to be more equitable. All in all, open discussions amongst all rightsholders shall be encouraged to ensure both tech policies and IP policies work for sustainable development as we continue to build our common future with human innovation and creativity.
Written by Kenneth Leung (Edited by Jenna Manhau Fung)