Effective Protection of Intellectual Property in the Internet Age


David Coleman is a lawyer who has worked extensively in the internet industry on intellectual property issues

The challenge of protecting intellectual property in the age of the Internet Search Engine

A ubiquitous problem in the information age is the protection of intellectual property. This is because the internet has made almost all information freely available online to anyone with a computer and the level of technical expertise required to search Google, which is obviously not a particularly high bar to jump over. As Google has also now become one of the main ‘sources of truth’ in the modern world, search engine rankings are now Traditionally, intellectual property was protected by legal mechanisms which allowed the owner of original information or material to sue someone that copied their content. It was usually quite a simple affair to show that someone had stolen your idea or copied your work and you could usually find them because prior to the time of globalisation publication rarely reached beyond national borders. In the present context, it does so routinely. You could, in the past, at least hope for a retraction on the basis of a strongly worded letter from your solicitor.

By contrast, in the present age, if someone copies your intellectual property, you will be lucky if you can even identify them accurately. They are most likely not in the jurisdiction for intellectual property that you published in. You may need to have the necessary technical skills to conduct a copyscape search, do an IP address lookup, subpoena the Internet Service Provider for the relevant IP address regarding their customer details and then actually commence an against the defendant in a completely foreign jurisdiction. Obviously, for most individual authors or producers of intellectual property, this process is so cumbersome and time consuming, not to mention expensive that it leaves many questioning whether it was worth producing the intellectual property in the first place. This is also compounded by the issue of security for costs in commencing a suit for breach of intellectual property as you would normally have absolutely no way of knowing if the defendant would have the ability to pay for any judgement eventually obtained.

Frustratingly, the law has also been woefully ineffective at adapting to the light speed development of information technology which has often developed several generations of evolution before legislators, the judiciary and many lawyers even realise that this development requires significant changes to the way that the law operates in order to cope with the rapid evolution of the organisation of information in our society. The development of information technology began in the 1990s and has accelerated at an ever increasing rate to a stage where information technology pervades our daily lives at an existential level. This development is now at such a great rate and is now so deeply embedded in our lives that it is ridiculous to believe that it could ever reverse or even slow down.

Replacement of the Legal Mechanisms By Protection Through Search Technology

Interestingly, Google has increasingly begun to incorporate mechanisms into its search algorithms which enable the authors of original content to protect their intellectual property though not through legal means. It is one of the first examples of development of self-regulation by the internet. Ultimately, Google is concerned with making its search engine a tool where people find the information that they are looking for and the search giant has discovered that one of the best ways to do this is to preference authors that write unique, engaging content in their search results. One of the mechanisms by which this occurs has been in place for a substantial amount of time. It is a part of the algorithm that ranks pages more highly if they are unique. There is also what is known as the Panda update which penalises sites that use duplicate content from other places on the web. Google has also acquired a new part of the algorithm called hilltop which gives authority to documents published by experts and this is likely to be more deeply incorporated into the algorithm in the future. Also, recently Google has rolled out the Google authorship markup which preferences pages written by recognised experts in the field.

What does the future hold for the law?

The law desperately needs to regain its relevance in the area of intellectual property protection by becoming more relevant to the concerns of holders of intellectual property who lack the resources or the practical impetus to seek legal remedies for breaches of intellectual property law. This process will only be achieved by creating more accessible mechanisms for the protection of intellectual property and the rights of creators of unique, original work. At present the law is sufficiently accessible to be of any practical assistance to people trying to protect their intellectual property rights and the traditional role of legal mechanisms is being replaced by mechanisms created in the world of information technology as a means of improving the user experience of information technology.

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