The Authors' Take - Demystifying the ‘Honest’ Infringer: Reorienting Our Approach to Online Copyright Infringement using Behavioural Economics

Demystifying the ‘Honest’ Infringer: Reorienting Our Approach to Online Copyright Infringement using Behavioural Economics


There is an intriguing paradox at the heart of online copyright infringement: while most people perceive themselves as law-abiding and honest, the practice of unlawfully downloading copyright material is widespread. How might we explain this contradiction? Could the answers inform our approach to addressing online infringement? These are questions I sought to confront in my upcoming contribution to JIPLP.

To shed light on these issues, I turned to research in the sphere of behavioural economics and psychology. In a recent work, Dan Ariely examined the disconnect between individual self-concepts of honesty and the propensity to engage in dishonest behaviour. In the context of intellectual property law, Ariely’s work suggests that the social acceptability of online copyright infringement, and negative perceptions of the creative industries fuel infringement. This is because people’s moral intuitions about what constitutes acceptable behaviour are shaped by the norms within their social groups, and people often rationalise dishonest behaviour as justified retribution against wrongdoers.

Yet, existing approaches to tackling copyright infringement have failed to effectively address these core beliefs which drive individuals to infringe. The prevailing response to online copyright infringement among developed countries has been to strengthen and expand laws against copyright infringement. Particularly notable developments have been the introduction of graduated response systems and the growing use of website blocking injunctions. While legal measures excel at reducing the supply of infringing content, they have only had modest, transitory success in reducing the demand for such content. I suggest that this is because legal solutions presume infringing behaviour is based on a rational assessment of the costs and benefits associated with infringement, whereas the psychological and structural drivers of infringement are far more complex.  

To reorient our approach to copyright infringement, I examine how social norms, market strategies, and digital architecture can target key drivers of online infringement left unaddressed by legal solutions. Particular highlights include: exploring how to deliberately cultivate a norms-based intellectual property system, examining the potential of blockchain technology to enhance access to legal content, and investigating how to shape the architecture of the Internet to ‘nudge’ consumers to select legal content.  

The approach I suggest does not demand that we dismiss the value of the law in addressing infringement. Instead, by recognising the value of other instruments in the regulatory toolbox alongside the law, we can begin to craft a more nuanced approach, sensitive to the full breadth of its causes.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).] 

What future for robots and AI in trade mark practice? Here's our February Guest Editorial

How can Artificial Intelligence help in the trade mark practice field? JIPLP Editorial Board member Darren Meale pens this month's editorial.

Here's what Darren writes:

The future of trade marks: my co-worker is a robot 

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 91, https://doi.org/10.1093/jiplp/jpx220
Published:
 
26 December 2017

I love trade marks. I live and breathe them. I love helping people understand them, get them and fight for them. I’ve learnt the old, established, sensible ways of doing this. But I also don’t like standing still. No one else is – the world is changing. Here is my brief vision for the future of trade marks.

The EU Intellectual Property Office (EUIPO) issued nearly 7,000 opposition and cancellation decisions in the past 12 months. How many did you read? Can you tell me how many times in the past five years word marks differing by only two letters were found to be confusingly similar, and how many times they were found not to be? The EUIPO’s similarity tool records 118,073 decisions on the similarity of particular goods and services with other goods and services from 19 trade mark offices. How many can you recall?

Trade mark lawyers draw on years of experience and judgment formed from that experience to make wise decisions on the suitability of marks for registration; on clearance searching; and on trade mark conflict. They will confess, or at least purport, to be au fait on the local trade mark office’s latest practice, and their attitude towards findings of likelihood of confusion. In which direction has the pendulum swung? Has the registry adopted a pro-brand owner stance, or might things be turning back towards a more liberal approach? We have a view.

Further, trade mark lawyers know the rules. It has taken us a while to learn them, and learn how to apply them, but we know to make a visual comparison, an aural and a conceptual one. We know to discount the non-distinctive elements and take greater note of the distinctive ones. We wrap these results up in a few moments and we apply our human instincts and we make our judgment. Some of us no doubt believe – and perhaps rightly – that because we have worked with genuine dedication and passion in trade marks for many years that our instincts are pretty good, and we sell our legal services accordingly. But how long will our superior judgment reign supreme?

A computer does not work like a human. It cannot see the subtlety of language, it struggles with nuance, and it can only operate in a mechanical, unthinking way. It cannot put itself into the mind of a human being and try and work out whether he or she will be confused by PEPSI v POPSI or GOOGLE v GIGGLE. It cannot prepare an overarching strategy. Well maybe not today, so don’t panic. But what about tomorrow? The computer can certainly be taught rules. Once it knows the rules, it will apply them in exactly the same way every time. And it will do it at effectively the speed of light. It does not need to read 7,000 EUIPO opposition and cancellation decisions. It has just read them. If we teach it how to interpret those decisions, it will do so just fine. I do not pretend to understand fully how AI and machine learning work. But I do recognize the principle that the more data we make available to a computer the better it gets at making judgments on human behaviour. The same will inevitably go for making judgments on trade mark conflict.

If you have such an AI now – please get in touch, as I’d love to see it. But one day we’ll get there. Your client will cease to ask “what do you think?” and begin to ask “what does the computer say?”. You, the lawyer, won’t be out of a job as such, but your job will be different. Now you program the computer and you help it learn and you interpret what it says. You add a human skin, because human relationships are essential to good client/lawyer relationships. But you no longer rely on your judgment, or your instincts based on the last five cases you read. You rely on the computer, which has read all 63,000 of the cases in the last 10 years, has all the data from the registries of the 117 countries signed up to the Paris Convention, has spotted all the trends. You rely on the computer not because it is faster or perhaps cheaper for the client. You rely on the computer because it is smarter: it gets the answer right more often than you.

Our February issue is out ... what's in it?

Our February issue has just been published, ahead of the beginning of the calendar month. What's in it?

Here's our table of contents:

EDITORIAL

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 91, https://doi.org/10.1093/jiplp/jpx220

CURRENT INTELLIGENCE

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 92–94, https://doi.org/10.1093/jiplp/jpx219

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 95–96, https://doi.org/10.1093/jiplp/jpx210

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 96–97, https://doi.org/10.1093/jiplp/jpx221

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 97–98, https://doi.org/10.1093/jiplp/jpx223

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 98–100, https://doi.org/10.1093/jiplp/jpx208

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 100–101, https://doi.org/10.1093/jiplp/jpx216

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 101–102, https://doi.org/10.1093/jiplp/jpx214

ARTICLES

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 103–119, https://doi.org/10.1093/jiplp/jpx145

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 120–123, https://doi.org/10.1093/jiplp/jpx185

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 124–131, https://doi.org/10.1093/jiplp/jpx187

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 132–142, https://doi.org/10.1093/jiplp/jpx188

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 143–153, https://doi.org/10.1093/jiplp/jpx193

FROM GRUR INT.

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 154–165, https://doi.org/10.1093/jiplp/jpx215

CORRIGENDUM

Journal of Intellectual Property Law & Practice, Volume 13, Issue 2, 1 February 2018, Pages 166, https://doi.org/10.1093/jiplp/jpx222