IP Expresso

The Heart of the Matter: Copyright, AI Training, and LLMs is a comprehensive analysis authored by Daniel Gervais, Haralambos Marmanis, Noam Shemtov, and Catherine Zaller Rowland. This work delves into the intricate relationship between copyright law and the development of large language models (LLMs) in artificial intelligence. Key Themes: Technical Foundations of LLMs: The authors provide an in-depth explanation of LLMs, covering aspects such as tokenization, word embeddings, and the various stages of model development. This technical insight is essential for understanding the subsequent legal discussions. Copyright Implications: The paper examines potential copyright infringement issues related to both the inputs (training data) and outputs (generated content) of LLMs. It highlights the complexities of using vast amounts of copyrighted material in AI training processes. Comparative Legal Analysis: A comparative study is presented, focusing on jurisdictions including the United States, European Union, United Kingdom, Japan, Singapore, and Switzerland. The authors scrutinize relevant copyright exceptions and limitations, such as fair use in the U.S. and text and data mining exceptions in the EU. Licensing Solutions: Given the legal uncertainties, the authors advocate for licensing as a practical solution. They propose a combination of direct and collective licensing models to facilitate the responsible use of copyrighted materials in AI systems. This article offers valuable insights for legal scholars, policymakers, and industry professionals grappling with the copyright challenges posed by LLMs. It contributes to the ongoing dialogue on adapting copyright law to technological advancements while maintaining its fundamental purpose of incentivizing creativity and innovation. For a more detailed exploration, the full article is available on SSRN: SSRN

Blockchain technology is increasingly influencing the music industry by offering solutions to longstanding challenges related to rights management, royalty distribution, and artist compensation. Key Applications of Blockchain in Music: Transparent Rights Management: Blockchain provides a decentralized and immutable ledger that records ownership and usage rights of musical works. This transparency ensures that artists, songwriters, and producers are accurately credited and compensated. Platforms like Blokur utilize blockchain to manage music rights data, helping publishers catalog their work and ensuring accurate compensation by resolving source disputes through AI analysis. Efficient Royalty Distribution: Smart contracts on blockchain can automate royalty payments, ensuring timely and precise compensation for artists whenever their music is streamed or purchased. This reduces reliance on intermediaries and minimizes administrative delays. For instance, Audius is a decentralized streaming platform that eliminates intermediaries, connecting artists directly with their audience and facilitating immediate royalty payments. Direct Artist-to-Fan Engagement: Blockchain enables artists to connect directly with their audience, offering exclusive content, merchandise, or even crowdfunding opportunities without traditional intermediaries. This fosters a closer relationship between artists and fans and provides new revenue streams. Platforms like Viberate use blockchain to manage vast amounts of crowdsourced data, offering real-time artist profiles, including upcoming shows and social media engagement, and rewarding community participants with VIB tokens. Enhanced Security Against Piracy: The decentralized nature of blockchain makes it difficult for unauthorized parties to alter or distribute music illegally, thereby protecting intellectual property rights. By registering their work on the blockchain, artists can establish a permanent and immutable record of ownership, helping to prevent unauthorized use, piracy, and copyright infringement. Challenges and Considerations: Adoption and Integration: Widespread adoption of blockchain in the music industry requires overcoming technical complexities and ensuring interoperability with existing systems. Education and awareness about blockchain technology among artists, industry professionals, and stakeholders are essential. Regulatory and Legal Issues: The integration of blockchain technology into the music industry raises regulatory and legal considerations. Intellectual property rights, licensing agreements, and data privacy regulations need to be navigated to ensure compliance. Technical Complexities and Scalability: Implementing blockchain technology at scale in the music industry poses technical complexities and scalability issues. Blockchain networks need to handle a high volume of transactions efficiently while maintaining speed, security, and cost-effectiveness. Future Prospects: As blockchain technology continues to evolve, its integration into the music industry holds promise for creating a more transparent, equitable, and efficient ecosystem. Ongoing developments in decentralized platforms, tokenization of music assets, and smart contract-based royalty management are poised to reshape the industry, offering new opportunities for artists and consumers alike.

The Music Industry on Blockchain Technology is a master's thesis by Andreas Fougner Engebretsen and Hallvard Kristoffer Boland Haugen, submitted to the Norwegian University of Science and Technology in June 2018. The thesis investigates how blockchain technology can address core issues in the music industry, particularly focusing on transparency and efficiency in revenue streams. The authors propose a decentralized application (dApp) that functions as a global copyrights database, enabling musicians to register and license their works. This system utilizes Ethereum smart contracts to manage license purchases, aiming to streamline royalty payouts and reduce the complexity of current licensing agreements. The thesis includes the development of the business logic using smart contracts on the Ethereum blockchain and an associated web application created with a JavaScript framework. This work contributes to the discourse on leveraging blockchain technology to solve value chain problems within the music industry.

Artificial Intelligence and Intellectual Property, edited by Jyh-An Lee, Reto M. Hilty, and Kung-Chung Liu, is a comprehensive examination of the intersection between AI technology and intellectual property (IP) law. Published by Oxford University Press in 2021, this volume addresses the multifaceted challenges and implications that AI introduces to the IP landscape. Key Areas Covered: AI Technology and Business Implications: The book begins with an exploration of AI's technical foundations and its transformative impact on various industries, setting the stage for subsequent legal discussions. Patent Law: It delves into issues such as the patentability of AI-generated inventions and the evolving standards of inventiveness in the context of AI advancements. Copyright Law: The editors examine the complexities surrounding authorship and originality when works are created by or with the assistance of AI systems. IP Administration: The text discusses how AI is reshaping IP administrative processes, including patent examination and trademark assessment. Software and Data Protection: It addresses the legal aspects of software developed through AI and the protection of data used in AI training and operations. Socio-Economic Impact: The book considers the broader social and economic effects of AI on innovation policy and the potential need for legal reforms. This scholarly work serves as a valuable resource for legal professionals, policymakers, and academics seeking to understand and navigate the evolving relationship between AI and IP law. It offers insights into current debates and proposes frameworks for addressing the legal challenges posed by AI technologies.

The Responsibility of Online Intermediaries for Illegal User Content in the EU and the US by Folkert Wilman offers a comprehensive analysis of the legal frameworks governing the liability of online intermediaries in both the European Union and the United States. Wilman, a member of the Legal Service of the European Commission, examines key legislative instruments such as the EU's e-Commerce Directive and the U.S.'s Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA). The book delves into the balance between combating illegal online content and safeguarding fundamental rights, including freedom of expression. It also addresses recent regulatory developments, such as the EU's Digital Services Act and the U.S.'s ongoing debates over Section 230 of the CDA. Wilman advocates for a "double-sided duty of care," urging online intermediaries to proactively address illegal content while ensuring the protection of users' rights. This work serves as a valuable resource for legal professionals, policymakers, and scholars interested in the evolving responsibilities of online platforms in the digital age.

In their scholarly article, "The Future of Trademarks in a Global Multilingual Economy: Evidence and Lessons from the European Union," Professors Barton Beebe and Jeanne C. Fromer examine the challenges posed by trademark depletion and crowding within the European Union (EU). Their empirical study analyzes 1.9 million trademark applications filed with the European Union Intellectual Property Office (EUIPO) from 1996 to 2018. The findings reveal that a significant proportion of common words across major European languages—English, German, French, Italian, and Spanish—are already registered as trademarks, leading to increased difficulty for businesses seeking new, distinctive marks. This situation is further complicated by the "reverse Babel problem," where the registration of a word in one language can preclude its use in others due to translational equivalence. The authors also highlight a trend toward trademark crowding, where closely similar marks coexist, potentially causing consumer confusion and raising barriers to market entry. To address these issues, Beebe and Fromer propose legal reforms aimed at managing trademark depletion and crowding, thereby preserving the effectiveness of the trademark system in a globalized, multilingual marketplace.

This episode delves into the use of Alternative Dispute Resolution (ADR) in resolving trademark disputes, a valuable approach for brand owners seeking efficient and cost-effective solutions outside the courtroom. ADR methods, including mediation, arbitration, and negotiated settlements, offer distinct advantages for trademark disputes, such as confidentiality, faster resolution, and specialized expertise. Key organizations, such as the World Intellectual Property Organization (WIPO), provide specialized ADR services for IP disputes, including trademark-related issues. The WIPO Arbitration and Mediation Center offers a structured process for mediation and arbitration, handling cases from domain name disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP) to broader trademark conflicts. In particular, UDRP arbitration has become a go-to mechanism for resolving domain name disputes linked to trademark infringement, offering an expedited, online process that circumvents lengthy litigation. The episode also explores the increasing adoption of ADR within the European Union, where trademark disputes may leverage EUIPO’s mediation services, particularly useful in cross-border trademark issues where jurisdictional complexities arise. Through examples and case studies, this episode examines how ADR solutions preserve relationships and maintain brand integrity, providing a flexible alternative to traditional litigation.

This episode explores the diverse approaches to harmonizing trademark law and integrating administrative procedures across jurisdictions. Trademark law harmonization seeks to create uniform standards for trademark registration, protection, and enforcement, facilitating smoother cross-border trade and reducing conflicts in multinational markets. However, the extent and method of harmonization vary significantly between regions. In the European Union, harmonization is advanced through instruments like the EU Trade Mark Regulation (EUTMR) and the Trade Marks Directive, which establish unified standards and procedures across member states. The EU Intellectual Property Office (EUIPO) enables a streamlined process for registration through a single application, offering rights across the entire EU. This integration extends to administrative appeal procedures and interagency cooperation among national trademark offices, ensuring consistent enforcement. By contrast, international agreements like the Madrid Protocol and the Paris Convention have enabled broader but more limited harmonization, facilitating international trademark protection but without imposing uniform standards across jurisdictions. Each member country retains autonomy over its trademark laws, with the World Intellectual Property Organization (WIPO) providing a centralized system for international trademark applications but limited oversight in enforcement harmonization. The episode examines how these varying degrees of harmonization impact brand owners, trademark practitioners, and regulators. It also discusses recent efforts toward administrative integration, such as shared examination databases and classification systems, which improve consistency while respecting local laws. Through these mechanisms, harmonization efforts seek a balance between efficient cross-border protection and the sovereignty of national legal systems.

This episode explores the evolving legal frameworks for protecting non-traditional trademarks, such as colors, shapes, sounds, smells, and holograms, under both Common Law systems and the European Union. Non-traditional trademarks challenge conventional standards for registrability and distinctiveness, creating unique legal landscapes in Common Law jurisdictions like the US and UK, as well as across the EU. In Common Law jurisdictions, non-traditional marks can be registered, but applicants must meet stringent criteria. For example, color marks in the US require evidence that consumers directly associate the color with a specific source, as seen in Qualitex Co. v. Jacobson Products Co.. Shape marks and product packaging must also meet distinctiveness requirements and cannot be functional—a principle enforced in cases like TrafFix Devices, Inc. v. Marketing Displays, Inc. This functionality doctrine prevents any exclusive rights that could inhibit competition. The EU takes a harmonized approach to non-traditional trademarks, regulated by the EU Trade Mark Regulation (EUTMR). The European Intellectual Property Office (EUIPO) allows non-traditional trademarks if they meet the requirements of being clearly defined, non-functional, and distinctive. Notably, the Libertel v. Benelux-Merkenbureau case established the criteria for color trademarks in the EU, requiring a clear and durable indication of the color claimed. For shapes, the KitKat case demonstrated how the EUIPO evaluates functional characteristics and distinctiveness in product design, underscoring the difficulty of achieving protection without strong consumer association evidence. This episode concludes with a comparative analysis of the protection available in Common Law and the EU, highlighting recent developments, challenges, and emerging trends in non-traditional trademark registrations across these jurisdictions. Whether for brand expansion or protecting innovative designs, understanding the requirements and limitations for non-traditional trademarks is essential for businesses navigating today’s global IP landscape.

In this episode, we examine the evolution of trademark dilution law, comparing its origins and development in the United States and European Union. Trademark dilution protects well-known brands from uses that may weaken their distinctiveness or tarnish their reputation, even in the absence of direct competition or consumer confusion. In the United States, the Federal Trademark Dilution Act (FTDA) of 1995 introduced dilution as a formal protection mechanism, later refined by the Trademark Dilution Revision Act (TDRA) of 2006. Under the TDRA, a trademark owner must prove that their mark is "famous" and show that the third-party use either blurs or tarnishes the brand’s distinctiveness. Landmark cases like Moseley v. V Secret Catalogue, Inc. and Tiffany v. eBay have shaped the interpretation of dilution, establishing that a likelihood of dilution, rather than actual dilution, is sufficient for protection under US law. In the European Union, dilution protection is embedded within the EU Trade Mark Regulation (EUTMR) and the Trade Marks Directive. Unlike in the US, the EU framework allows broader protection for well-known marks, protecting against both "blurring" and "tarnishment" across all EU member states. A pivotal case, L’Oréal v. Bellure, established that third-party uses evoking the mental image of a well-known mark could amount to unfair advantage, thereby reinforcing EU standards on dilution. The episode discusses the unique paths that the US and EU have taken toward trademark dilution, examining how each legal framework balances brand protection with free expression and market competition. Through prominent case law and statutory developments, this episode highlights the challenges in enforcing dilution law and the impact of cultural and economic differences on its application across these jurisdictions.

This episode delves into the principle of trademark exhaustion and its impact on the free movement of goods, a cornerstone of both EU trademark law and global trade policies. Trademark exhaustion, also known as the "first sale doctrine," limits the rights of trademark holders over goods once they have been lawfully placed on the market. The episode explores how this principle enables the redistribution of branded products, fostering competitive markets while balancing the intellectual property rights of trademark holders. In the European Union, the principle of regional exhaustion allows trademarked goods lawfully sold within the European Economic Area (EEA) to circulate freely across EU member states without further trademark restrictions. This principle is critical for upholding the EU's fundamental objective of free movement of goods within the single market. Cases such as Silhouette International v. Hartlauer have underscored the EU's regional approach, which prevents trademark holders from blocking resale within the EEA but allows them to control distribution outside this zone. Contrastingly, international exhaustion allows goods sold anywhere in the world to move freely across borders, unrestricted by trademark rights. Countries like the US and Japan often follow this model, whereas the EU remains committed to its regional approach. The episode discusses the benefits and potential drawbacks of both models, examining how regional versus international exhaustion influences parallel imports, pricing, and brand integrity. Through a look at landmark cases and statutory frameworks, this episode highlights the ongoing debate on balancing trademark holder rights with market access and consumer choice, providing a nuanced understanding of trademark exhaustion's role in global and regional trade dynamics.

This episode provides an in-depth look at the legal framework governing trademark transactions under Common Law systems, such as those in the UK and the US, as well as in the European Union. We explore how trademarks, as valuable assets, are frequently subject to transactions like licensing, assignment, franchising, and securitization, which require distinct legal approaches and protections to maintain brand integrity and commercial value. In Common Law jurisdictions, trademark transactions are primarily governed by case law and statutes. Key concepts include the principles of goodwill, non-assignment in gross (assigning a trademark without transferring the associated goodwill), and the treatment of licenses, which vary in exclusivity and scope depending on the agreement. We discuss how trademark assignments and licensing must respect these fundamental principles to be legally enforceable, especially as seen in cases where assignments impact consumer perceptions of quality and source. In the EU, trademark transactions are regulated by the EU Trade Mark Regulation (EUTMR) and associated directives, creating a harmonized approach across member states. The episode addresses how EU law facilitates trademark transfers while enforcing strict rules around quality control, continuity of brand perception, and trademark use to prevent “naked licensing,” where a mark’s distinctiveness could be jeopardized. Additionally, we look at the procedural requirements for recording trademark transactions at the EU Intellectual Property Office (EUIPO) to ensure that trademarks retain their enforceable status across all EU jurisdictions. Finally, we consider how these different frameworks affect international trademark transactions, particularly in light of recent regulatory changes and trade agreements that impact cross-border IP transactions. This comparative analysis provides essential insights for navigating trademark deals within and across Common Law and EU systems.

In this episode, we examine the legal frameworks protecting Geographical Indications (GIs) of origin, focusing on how various jurisdictions safeguard products with unique qualities linked to specific locations. Geographical Indications serve as valuable intellectual property rights, often associated with agricultural products, wines, and spirits that derive their quality, reputation, or characteristics from their place of origin. We explore the primary mechanisms in place under the World Trade Organization’s TRIPS Agreement, which mandates GI protections, and how different regions implement these requirements. In the European Union, robust legislation such as the PDO (Protected Designation of Origin) and PGI (Protected Geographical Indication) schemes offer extensive protection. These frameworks ensure that only products genuinely originating in a specific area can use a registered GI, preserving authenticity and preventing market dilution. Comparatively, we look at the US’s more trademark-based approach, which relies on certification marks to protect regional brands and names, and the implications of these differences for international trade. Additionally, the episode covers dispute resolution mechanisms and the ongoing global debates over GI protection, emphasizing their significance for producers and consumers alike.

In this episode, we explore the legal frameworks governing domain name disputes involving trademarks in North America, mainland China, and Hong Kong, focusing on the intersection of domain name registration and trademark rights. With the rise of e-commerce and digital branding, domain names have become critical intellectual property assets, but they also pose unique challenges in cases of “cybersquatting” or unauthorized use. We analyze how the United States addresses these issues through the Anticybersquatting Consumer Protection Act (ACPA) and the Uniform Domain-Name Dispute-Resolution Policy (UDRP), providing trademark owners with options for recourse against infringing domain names. In contrast, mainland China enforces its domain name disputes under the China Internet Network Information Center (CNNIC) rules, which align with broader intellectual property laws but emphasize administrative arbitration. Meanwhile, Hong Kong follows UDRP principles but applies distinct local protocols in disputes involving .hk domains. Through comparative analysis, this episode examines key cases, regulatory differences, and strategies trademark owners can use to navigate domain disputes in these varied jurisdictions, offering a practical guide to protecting digital brand identity in today’s global market.

In this episode, we delve into the distinctions and similarities between EU and US laws regarding trademark infringement, drawing from The Cambridge Handbook of International and Comparative Trademark Law. We examine the core elements required to establish infringement in both jurisdictions, including the likelihood of confusion, dilution, and unfair advantage. While both the EU and US aim to protect trademark owners and prevent consumer deception, they employ different approaches: the US places a greater emphasis on the “likelihood of confusion” test, whereas the EU also integrates “dilution” and “unfair advantage” as broader protections against free-riding on brand reputation. Through case studies and statutory comparisons, we outline the varying standards for proving infringement, exploring how these differences influence the enforcement of trademark rights across borders. This episode provides a comprehensive understanding of how trademark infringement is approached on both sides of the Atlantic, with practical implications for global brand protection strategies.

This episode examines public policy limitations on trademark protection, comparing approaches across various jurisdictions as outlined in The Cambridge Handbook of International and Comparative Trademark Law. Public policy serves as a boundary to trademark rights, ensuring trademarks do not violate moral standards, public order, or fundamental rights. We explore specific limitations such as restrictions on scandalous or offensive marks, regulatory exclusions, and the use of trademarks for harmful products like tobacco or alcohol. Through comparative analysis of cases from the US, EU, and other countries, we discuss how courts and legislatures balance public interest with brand protection, including the impact on freedom of expression and consumer protection. This discussion provides insights into the evolving role of trademarks within public policy and the nuances in legal frameworks internationally.

This episode dives into the doctrine of secondary trademark liability in both the United States and European Union, based on insights from The Cambridge Handbook of International and Comparative Trademark Law. Secondary liability holds third parties accountable for facilitating or contributing to trademark infringement, even if they are not the primary infringers. We unpack two key forms of secondary liability—contributory and vicarious liability—examining how they apply to platforms, distributors, and service providers. Through landmark cases like Tiffany (NJ) Inc. v. eBay Inc. in the US and the L’Oréal v. eBay decision in the EU, we explore how courts assess knowledge, control, and the role of intermediaries. This episode highlights the differing thresholds and legal tests for establishing secondary liability across jurisdictions, emphasizing the impact on online marketplaces and the obligations for trademark protection in a digital age.

In this episode, we explore the intricate relationship between trademark and copyright law as presented in The Cambridge Handbook of International and Comparative Trademark Law. We examine how both regimes can apply simultaneously to certain works—such as logos, characters, packaging designs, and creative branding materials—providing layers of protection for intellectual property. While trademark law focuses on brand identity and consumer perception, copyright law protects the creative expression of ideas. We discuss practical examples and prominent cases where both rights converge, such as brand mascots or iconic logos, and examine how courts navigate conflicts when copyright-protected content is repurposed in ways that might infringe on trademark. This episode sheds light on the strategic use of overlapping rights, emphasizing the strengths and challenges of dual protection in international markets.

In this episode, we explore the complex interplay between intellectual property law and the right of publicity, as examined in The Cambridge Handbook of International and Comparative Trademark Law. The right of publicity allows individuals to control the commercial use of their identity, including names, likenesses, and distinctive attributes. We discuss how this right intersects with trademark and copyright law, particularly when protecting personal brand and celebrity endorsements. The episode compares approaches in jurisdictions like the United States, where the right of publicity is more pronounced, with those in the European Union, where privacy and data protection laws also influence publicity rights. Through prominent cases and legislative examples, we examine the boundaries of protecting personal identity in the context of advertising, entertainment, and commercial products.

In this episode, we delve into the intricate relationship between trademark law and advertising law within EU and Common Law frameworks, drawing insights from The Cambridge Handbook of International and Comparative Trademark Law. This episode unpacks how trademarks are protected in advertising contexts, focusing on issues such as comparative advertising, keyword advertising, and the unauthorized use of trademarks in marketing. We explore key cases and legislation that outline the permissible use of trademarks in promoting goods and services, examining how courts balance brand protection with fair competition and consumer information rights. The episode highlights how EU regulations, such as the Misleading and Comparative Advertising Directive, and Common Law principles shape the boundaries of lawful advertising practices, providing a comparative perspective on the overlap between trademark rights and advertising standards.