Ângela Kretschmann [1]

Gabriel Borges dos Santos [2]

João Bernardes Rocha Filho [3]
Extended Summary:


New business models, based essentially on technology, are characteristic of a time when almost everything seems instantaneous and fleeting. The era of new business models is consecrated by disruptive innovation. Intellectual property, which from its earliest years sought to regulate, in a general way, the incidence of legal protection over creations, seems to wait for innovations to influence its determinations.

It turns out that if on one hand it would be normal to wait for the attention of intellectual property on innovations, especially those of disruptive character, on the other, what is perceived is a great deal of indifference from those who are the holders of the new creative forms. It is strange, no doubt, to imagine that we would be in an age that disdains intellectual property, and this undoubtedly deserves to be studied in order to conclude whether the case is a general tendency or a collection of isolated facts.

It is not from now on that one perceives a debate between defenders and opponents of intellectual property. Some argue strongly against the foundations and basically the scope of intellectual property, understanding that it basically serves as a stimulus to creation, while others accuse intellectual property of barring free enterprise and encouraging monopoly.

Now, what is perceived is that forces coming from within liberalism itself question the excess of protection afforded by intellectual property laws, maximizing the gains to the detriment of something that could be called the “fairer gain”, relative to the result of a job. It was pointed out that the foundations of protection could be misaligned with contemporary reality, or that the use of intellectual property would be undermined, to the extent that protection represents a barrier to the development of culture, which depends on freedom and access to proliferate.

With the coming of the internet of things, big data and artificial intelligence, such critical issues have been potentialized. It is no longer necessary to enter into a battle of arguments to indicate that there is something wrong with the pillars of intellectual property protection, especially with copyright. The system itself is trying to demonstrate that the current rules are not only insufficient, but fail to account for the plurality of situations that have emerged in the system, as if it were a new galaxy, suggesting an impending implosion.

New business models often seek the support of intellectual property laws, but we do not perceive sufficient clarity of these Laws, however, it is noticed that the jurisprudence has already been manifested and tried to clarify aspects that can give shelter to new ways of use.

If we consider the historical situation of what we can call a homo browser, in analogy to homo sapiens (BRYNJOLFSSON, McAFEE, 2015), about 60,000 years ago, we can see a striking similarity: while the latter attempted to survive by adapting to the use of new instruments, the current human depends more and more on technological learning and the use of new applications. Undoubtedly, this man, who was considered “modern” in relation to his predecessor “australopitecus”, had a similar need to what is happening today. So the homo browser, or homo cyber can also be called “modern” in that sense. There are indications that, due to technological expansion, about 90% of all existing information has been produced in the last 2 years (SINTEF, 2013). This is even more astonishing if we remember that the human being began to draw and write about 20 thousand years ago.

Technology is not intrinsically linked only to ICTs, but to the entire capillary system of society, as it helps individuals to improve their quality of life, as well as the development of human capital.

Humanity has experienced a great leap in the world’s population since 1900 – a demographic bomb – jumping from just over a billion and a half to seven billion and six hundred million today, according to Worldometers (2018). On the other hand, in the same proportion, the informational flood increases exponentially, with no prospect of decrease (LÉVY, 1999). All this technological transformation has gone through the creation of typography, telegraph, radio, television, computer, internet and smartphone, among other modern technologies, and identifies the human capacity to generate knowledge and tools of communication and information – ICTs.

From this perspective, new tools that revolutionize humanity and its way of work and development, such as: Blockchain, Big Data, Artificial Intelligence, Cloud Computing and Internet of Things, are emerging. The future seems to be presumable, but it is not, since technological man has left behind the industrial age and bourgeois society, and is penetrating into a radically new world (FERKISS, 1969), where the boundary between human and machine begins to become increasingly indistinguishable, generating a complex species of promiscuity between humans and machines (HARAWAY, 2013). The changes are so deep that, practically, they force us to rethink our conceptions of author, authorship and originality.

Disruptive innovation-even one that alters our social practices-is so strong that it changes our way of living, working, and learning (Chesbrouer, 2012), and is perhaps the strongest point within the current patent system, since it alters the form of being human.

From the first printing presses to personal printers, these have served us for about 600 years, as Fitzpatrikc (2011) warns. Now, however, more and more artificial intelligence arrangements will have to be taken into account, and even have already appeared before the courts. What was considered as an exclusive act of human beings, erected to a position of almost “author gods”, may be at the end, for a new creative deity would be establishing itself, and who at first does not claim copyright. However, the “author gods” persist in claiming the rights of creation for themselves. In this sense, in the case of New Production Ltd. versus Mazooma Games Ltd., the Supreme Court of the United States determined that the computer generated elements using bitmap were authored by the programmer (IHALAINEN, 2018).

In the same step, we can mention innumerable cases of technology being used to positively develop society. However, the issue of authorship is presented to bring to the debate the need for a critical view of technology and its environment. The loss of the human essence is a new fact, derived from modern technology, and encompasses its technological imprisonment, where the dehumanization of man, or his deification, is something normal and justifiable (JESUS, 2013).

Currently, we experience an exponential growth in data processing and the creation of user profiles to facilitate access to the target audience, in this way, vulnerability is being mediated by technology through algorithms that know our digital traces and patterns of consumption, converging tools of Big Data, Artificial Intelligence and Cloud Computing, to the detriment of humanized choice.

In fact, peer-to-peer networks, which function as both clients and servers, have facilitated file sharing and spawned a new form of business for artists and record labels. In the same way, blockchain arises within the logic of P2P networks, that is, they are distributed databases and that they keep records of transactions permanent and tamper-proof, as described in Wikipedia.

Bitcoin, the virtual currency that uses the blockchain as an accounting ledger, is a large business model that is based on this network, and increasingly governments and global economic entities adhere to the tool (SOARES, 2018). E-currencies – or crypto-coins – are criticized for lack of ballast. In simple terms, ballast is the confidence of the nation that guarantees the power of the physical currency, and in digital coins the ballast would be in the technology itself and in its power of violation through the blockchain. The intention is not to analyze the safety or not of this technology, but the limit we should give to it, as we are experiencing the economy 4.0 and all its reflexes in society – citizen 4.0, industry 4.0, government 4.0 – through disruptive innovation .

A close confrontation on patents is emerging because of disruptive innovation and will involve maintaining the current legal model vis-à-vis new technologies because patents once had a long shelf life with a gap of decades between one invention and another. Nowadays, however, the time lag between one invention and another is short, and this is often overcome before the conclusion of the patent administrative process.

The change in the business model that explores patents is being transformed by open innovation, that is, closed innovation, which is developed within the company and with its own human capital, has been replaced by open innovation, which is the search for external ideas united with internal ideas (CHESBROUGH, 2012). The logic of open innovation is the abundance of innovations developed outside the company, but which can be capitalized.

Thus, the principles highlighted by the author lead to the conclusion that the business model of open innovation is changing the very logic of registering the patent for equity to third-party capital, that is, companies can no longer be dependent on their abilities to maintain permanence and growth in the market. The company must align the best form of the business model created by open innovation, maintaining the balance with its internal capacity, because the technologies do not generate value by the nature itself, but by the business model and the strategy used, guaranteeing the success of commercial exploitation of the new technology (CHESBROUGH, 2012). The sharing between internal and external areas is the strategic point of innovation of this model, and may generate a new legal regulation in the sector.

The perceived central issue is that the technological revolution has already occurred, but the intellectual community still needs to be reinvented, since it seems tied to the old concepts of author and author, centered on the individual and his quasi-divine capacity for creation. This is no longer acceptable in current times, considering that increasingly the human being uses technological resources for production.

For Fitzpatrick (2011), we would need to review our traditional notion of author. He understands that we must see the authorship from a different perspective, less anxious and more productive, as we have the opportunity to recentralize our understanding of what we are doing when we write, and what others do when they read us, within the framework of conversation which is promoted by the internet. We understand, however, that to see the authorship of a new perspective is precisely to rethink the authorship and the very concept of author, which is outdated in the face of this new reality.

And it is in this aspect that the new technological modalities, leveraging the contemporary forms of business, lead to reinforce the need to revise paradigmatic concepts of authorship and originality. Artificial intelligence requires this, because the question is open about who is the author of a work involving human beings and the application of artificial intelligence.

Among the new ways of dealing with the topic, we highlight some countries that reinforce copyright protection, as occurs in the United States on a large scale, considering the decisions that have been made, and Japan, on the other side of the spectrum, a brand-new form of protection based on unfair competition. In this sense, Ihalainen cautioned, such treatment would limit copyright, rather than embracing it in a broader protection, aligned with traditional copyright (Ihalainen, JANI, 2018, 726).

However, it is possible to perceive two distinct aspects in this context: on the one hand, the obsolescence of the law, and on the other, the legal adaptation to the novelties. That said, far from being a legal exhaustion, once the laws can cover the new situations, we are faced with a reality in which creators and holders wonder how much their lucrative businesses must in fact be subject to the laws of rights copyright. Apparently, in some situations the way in which innovation promotes significant changes and impacts on new creations, profits are obtained within a context already predicted to be limited in time, without fixing in the interval of 15 or 20 years granted by Law of Industrial Property. Details and observed cases that imply in this analysis will be developed in a future article, since the objective, here, is limited to exposing the current state of the research, in the form of an expanded abstract.


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[1] Pós-doutora pela Westfälische Wilhelms-Universität Münster, Alemanha (ITM, em 2012). Professora Honorária Visitante da Universidade de Münster, para o ano de 2018. Pesquisadora Sênior da Universidade de Brasília – UnB. Doutora em Direito pela Universidade do Vale do Rio dos Sinos (2006). Mestre em Direito pela Pontifícia Universidade Católica do Rio Grande do Sul (1999). Advogada no escritório http://www.kre.adv.br. Foi Coordenadora do Curso de Direito do Cesuca (2009-2014). Foi Diretora de Pesquisa do CESUCA (2014-2016). Integra o Quadro de Árbitros da Câmara de Arbitragem da Associação Brasileira de Propriedade Intelectual (CArb-ABPI), do Centro de Solução de Disputas em Propriedade Intelectual (CSD-PI, da ABPI). Foi professora da Unisinos, lecionando a disciplina de Direito de Propriedade Intelectual (EAD) e Direito e Tecnologia da Informação, do Curso de Segurança da Informação, e do Mestrado  em Direito, por cerca de 25 anos (entre 1992 e 2016). Foi professora no Curso de Especialização em Direito, Mercado e Economia, e também da Especialização em Propriedade Intelectual, da PUCRS.  É membro da Associação Brasileira de Agentes da Propriedade Industrial (ABAPI). É integrante da ABPI (Associação Brasileira de Propriedade Intelectual), realizando perícias judiciais na área do Direito da Propriedade Intelectual (plágio, pirataria, concorrência desleal), e Direitos de Personalidade (nome, imagem, privacidade). Integra o GEDAI – Grupo de Estudos de Direito Autoral e Industrial – GEDAI, da Universidade Federal do Paraná, vinculado ao Programa de Pós-Graduação em Direito da UFPR.

[2] Possui graduação em Ciências Jurídicas e Sociais (2007) e Mestrado em Ciências Sociais (2017) pela Universidade do Vale do Rio dos Sinos – UNISINOS. É membro do Instituto Brasileiro de Direito da Informática (IBDI). É especialista em Direito Processual Civil pela Universidade de Santa Cruz (UNISC). Advogado (OAB/RS 72.876). Atua, principalmente, na área do direito da tecnologia da informação. Tutor na Unisinos, na disciplina de Direito e Tecnologia da Informação.

[3] Licenciado em Matemática (Claretiano/SP, 2018). Bacharel em Filosofia (Unisul/SC, 2015). Pós-Doutor em Enseñanza de las Ciencias (Facultad de Educación/PUC Chile, 2012). Especialista em Psicossomática (Facis/SP, 2002). Doutor em Engenharia, Metrologia e Instrumentação (Labmetro/UFSC, 1999). Mestre em Educação (Faced/Pucrs, 1994). Especialista em Metodologia do Ensino Superior (Faced/Pucrs, 1991). Licenciado em Física (Fafis/Pucrs, 1989). Técnico em Análises Clínicas (CSA/RS, 1978). Técnico em Eletrônica (IM/SP, 1974). Atua como professor titular em dedicação exclusiva da Escola de Ciências da Pucrs e professor permanente do Programa de Pós-Graduação em Educação em Ciências e Matemática (PPGEducem/Pucrs). Atuou como metrologista em Eletricidade e Tempo e Frequência no Labelo/Pucrs, como professor concursado da Secretaria de Educação do Estado do Rio Grande do Sul (Seduc/RS) e em escolas privadas de EF, EM e EJA, tendo lecionado em cursos de pós-graduação da Sociedade Brasileira de Psicooncologia (SBPO) e da Associação Brasileira de Medicina Psicossomática (ABMP).