Are We Owned? A Multidisciplinary and Comparative Conversation on Intellectual Property in the Algorithmic Society

Funded by Modern Law Review.

Humanity has seen unprecedented developments in Artificial Intelligence (AI), cloud computing, big data, Internet of Things (IoT), and blockchain. These technologies have the potential to benefit society, from predicting with extreme accuracy the development of forms of cancer to innovative forms of resistance to censorship and power abuses (Cruz and Wishart 2006; Noto La Diega and Stacey 2018). However, many warn of the risk of misuse, perhaps through the deployment of robot killers, ubiquitous public and private surveillance in the “smart” home, and decision-making on border crossings and prison appeals (Sharkey 2010; Lin and Bergmann 2016; Flores, Bechtel, and Lowenkamp 2016; Noto La Diega 2018). In this one-day workshop, four high-profile speakers – experts in US and European Intellectual Property (IP) law, socio-legal studies, and sociology – will lead a conversation on these developments and concomitant risks. Participants will address the overarching question: can legal, socio-legal, and sociological arguments be used to prevent the monopolisation of digital and physical goods by means of IP rights and contracts that are making us tenants of our own “smart” devices? Or, are we condemned… to be owned? IP Laws are an enabler of the detrimental uses of these technologies by appropriating everything around us and keeping secret the way they affect us. IP rights – copyright, trademarks, patents, designs, and trade secrets – have always been justified as a form of temporary monopoly on original ideas, inventions, etc. that would be necessary to incentivise creativity and innovation. These justifications have been debunked and IP demonstrated to be product of capitalism aimed at creating new enclosures of the ‘commons’ (Boyle 2017; Kinsella 2008). IP plays a crucial role in allowing uses of new technologies that are detrimental to society and preventing beneficial uses. IP is everywhere and lends itself to monopolise virtually anything (Ghidini 1995; Ricolfi 2002). ’Your’ phone belongs to the holders of the copyright on the code running on it, the manufacturers owning its design and the patents on how it works, as well as trademarks not only on logos, but also on things such as the way you swipe. What happens when it is no longer just computers and phones embedded with software and other IP-protected digital contents? What happens when these proprietary smart objects are everywhere: in your bedroom, in your bathroom, in your body? Our behaviour becomes heavily restricted by those Terms of Service, Privacy Policies, End-User License Agreements, etc. that cover every aspect of the things we thought we owned. We have become digital tenants, not owning or controlling any object and data around us (Tufekci 2019). To the point that, one can argue, that we no longer own: we are owned (Mulligan 2015; Fairfield 2017). By selling consumers hardware but retaining ownership of software, service, and data, ‘tech companies are treating users like digital tenants’ (Sadowski 2019), leading to a new form of rentier capitalism (Standing 2016; Vercellone 2006). The fact of being tenants of our own “smart” devices has practical consequences. For example, under the Consumer Rights Act there is an implied term that the purchaser of a good, as opposed to the tenant, will enjoy quiet possession of the good. This means that, if you own goods, then a trader who supplies them promises that the consumer’s possession and use will be uninterrupted (Hon, Millard, and Singh 2016). But as digital tenants, we cannot invoke such legal protections. Alongside the speakers detailed below, a diverse range of scholars, including precarious workers and other colleagues from under-represented categories, will be recruited through a Call for Abstracts to be disseminated through the main IP mailing lists (e.g. IP Proffs and IT and IP Conferences) . This will suggest answering the overarching research question by tackling one of the following themes:

  • Can AI create art and other copyright materials? If so, who owns them and what happens if humans are no longer allowed to create because every new creation would infringe the copyright on an AI-created work?
  • One of the fundamental principles in IP law is that software “as such” cannot be patented. If every physical object becomes embedded with software, would this mean that every software becomes patentable?
  • A combination of IP rights, contracts, and technological protection measures is allowing companies to own our data. Is this justified?
  • Under the GDPR, citizens do not have a right to access their personal data if this adversely affects third parties’ IP rights. How will this provision play out in practice? Would Brexit be an opportunity to diverge from the EU on this point?

Total award value £4,915.00

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