Intellectual property (IP) encompasses intangible assets that result from human creativity, such as inventions, literary and artistic works, symbols, names, images, and designs used in commerce. As we transition into an increasingly digital world, where the concept of the metaverse—a single, shared, immersive, persistent, 3D virtual space—is gradually taking shape, the perception of IP and its evolution in this new reality pushes the boundaries of legislative rights. This fundamentally changes the concept of intellectual property ownership and protection.
From a legislative standpoint, traditional intellectual property rights address matters like copyright, trademark, and patent infringement, as well as trade secret misappropriation, software piracy, counterfeiting, and plagiarism.
However, when viewed through the lens of Artificial Intelligence (AI) or the ability to sell digital assets using non-fungible tokens (NFTs) across global jurisdictions, as well as the emerging risk of name, image, and likeness (NILs) rights, owners of intellectual property face additional considerations.
The Age of Artificial Intelligence (AI):
AI is currently revolutionizing various online applications, including AI natural language processing tools that assist with tasks like composing emails and writing essays. While these AI platforms are convenient, they raise questions and concerns about copyright infringement from a regulatory and legislative perspective.
AI’s ability to mimic personality traits, such as recognizable voices, also introduces uncertainty around voice ownership, particularly when used commercially to endorse ideas, products, or entities. For instance, a video shared by a local soccer club featuring a distinctive voice narration serves as a prime example of a grey area in legislation that exposes companies to potential legal proceedings across different jurisdictions.
The legal concept of IP protection grants exclusive rights to individuals and entities to control and profit from their inventions or creations. It safeguards against unauthorized use, reproduction, or exploitation of their IP. It is crucial for organizations to fully understand the value of their IP and how to protect it.
Identifying Critical IP Assets:
In the past decade, the market value of intangible assets has shown a direct correlation with their increase. As businesses embark on their digital transformation journeys and adopt technology-enabled business models, they become more susceptible to IP infringement and related risks. As businesses expand across geographies, they expose themselves to potential legal issues in more litigious regions.
Financial analytics and modeling can inform risk transfer methods, including the limits and scope of intellectual property insurance coverage. With the growing concern of IP theft and competitors seeking to increase market share, companies may need to defend themselves against accusations of IP infringement or theft. Consequently, businesses could face significant financial losses and reputational damage.
While South Africa is not highly litigious, it has long-established legal frameworks for IP infringement, such as the Trademarks Act of 1993, the Copyright Act of 1978, and the Patents Act of 1978. Recent cases, however, emphasize the importance for companies to articulate and defend what sets them apart in the intellectual landscape. These cases include Makate v Vodacom and Multichoice South Africa (Pty) Ltd v Barron and Another.
As businesses embark on their tech-enabled journeys, they cannot neglect the development of an IP strategy. At this juncture, the assistance of an experienced broker with insight into intellectual property solutions becomes crucial.
By Zinhle Ngidi, TMT Champion & Cyber Solutions Senior Client Manager at Aon South Africa.