By Frederick Mostert, Professor of Practice and Sheyna Cruz, LLM Student, Dickson Poon School of Law, King’s College, London, United Kingdom
In the sporting arena, the first person to cross the finishing line enjoys the spoils of victory. The same is true of intellectual property (IP), which is essentially predicated on the principle of “first in time, first in right.” While the principle appears simple, many creative spirits and innovators who claim IP rights have struggled to convincingly demonstrate that they were the first to reach that critical finishing line. Addressing this gap in evidence is the rationale of an exciting new digital tool from the World Intellectual Property Organization (WIPO) called WIPO PROOF, which allows creators to demonstrate their work existed at a particular date and time.
Why does the date of creation matter?
IP protection is increasingly viewed as an essential asset in the toolbox of creative spirits such as designers, artists, scientists, inventors and entrepreneurs, as well as start-up companies and SMEs, all of whom create value through the development of original works, designs, inventions and brands. If you are the first to write the source code for a program, compose a new song, design a unique handbag, or invent a new digital widget, you are well placed to defend the IP in your creation from unauthorised acts of copying or misuse, otherwise known as “infringements”. No wonder Big Tech and international brand companies are focused on the importance of being first past the post to protect their most crucial assets.
WIPO PROOF uses digital date-and-time-stamping technology, which allows creators to obtain a unique “fingerprint” for their file that records the critical date of existence.
With all forms of IP, proving that you are “first in time” is a precondition for enforcing your rights, yet it is often overlooked. Nowhere is the value of this evidence more salient than in the case of copyright. This form of IP, by its nature, arises automatically without formality: for instance, as the author of an original literary or artistic work, you are by default the first owner of the copyright.
However, many creators do not realise the importance of documenting the crucial date of creation of their work. This oversight can lead to unfortunate results when they later seek to enforce their IP rights.
How to prove you are “first in time”?
Meeting the time-stamping needs of creators in an increasingly digital landscape is where WIPO PROOF comes in.
In general, digital date-and-time-stamping technology allows creators to obtain a unique “fingerprint” for their file that records the critical date of existence. The use of digital date-and-time-stamping for IP owners has gained traction in recent years. For example, several private companies have launched their own copyright and other IP registries with a view to offering IP owners a means of date-and-time stamping their work. However, much like their more traditional counterparts, digital date stamps derive their persuasive weight from their status as independent verification by a trusted and often official third party.
With its latest innovation, WIPO steps up to a crucial role as an independent and trusted official third party. WIPO PROOF, an online service introduced in May 2020, enables creators and companies alike to generate a date-and-time stamp of a digital file, known as a WIPO PROOF token. Because such certificates are issued by WIPO, they bear an official stamp of authority; an imprimatur which greatly adds to the persuasiveness of such evidence in courts and legal battles. WIPO is as an impartial intergovernmental organisation and a leading authority in IP filing and registration systems. This makes WIPO PROOF an authoritative mechanism by which creative spirits and innovative companies can produce persuasive evidence of the date of existence of their creation.
In addition to its core authentication function, several important features ensure that WIPO PROOF remains widely accessible and reliable. For a start, the service is provided for a very reasonable fee. The fee structure of WIPO PROOF makes this important digital tool accessible to individuals and start-up enterprises, which in turn helps to democratise IP.
Moreover, WIPO PROOF offers full support in 10 languages (Arabic, Chinese, English, French, German, Japanese, Korean, Portuguese, Russian and Spanish) enabling customers to source documentary evidence in the language of their local courts. The service has also been certified as compliant with all relevant policy, security and technical standards set out by the European Union (EU) eIDAS regulation and the International Organization for Standardization (ISO) 27001 standard. This provides further assurance to IP owners that the confidential information they safeguard with WIPO PROOF is secure and protected in accordance with global standards.
While WIPO PROOF can be used to confirm the creation of a file at a particular point in time, it should be noted that the timestamp performs a formalistic function as opposed to having substantive registration effect. In other words, possessing a token from WIPO PROOF will neither confer nor prove IP rights per se – rather, these rights will normally arise separately in accordance with registration procedures. Nevertheless, having an official document which attests to the date and time of existence is a quick, inexpensive and efficient first step to official confirmation and simple proof that an originator was “first in time.”
Early data tells us there is much demand for digital date-and-time-stamping. As of September 2020, WIPO Proof had already been used by customers from 117 countries. In time, digital date-stamping may come to be recommended as best practice for IP owners the world over.
