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Privacy Rights in the Digital Age

Intellectual property

by Ana Santos Rutschman

The set of rules that governs creations of the mind, including, but not limited to, copyrights and patents. Intellectual property may trigger privacy concerns in connection with aggregation and dissemination of personal information, database protection, freedom of speech under the First Amendment to the U.S. Constitution, and liability of Internet service providers.

Intellectual property rules grant monopolies over intellectual creations. Original works are protected by copyright law, whereas patent law protects inventions. In both cases, the creator or inventor is entitled to a bundle of exclusive rights, enabling him or her solely to control the use and distribution of the work or invention. This monopoly is limited in time, lasting for several decades after the life of the creator, or around twenty years since the invention was patented.

Many of the international agreements that define the global design of current intellectual property regimes have been negotiated in connection with trade agreements. For this reason, many of the intellectual property norms and regulations that affect privacy rights are negotiated in trade arenas and reflect normative and policy choices designed to promote trade goals.

Privacy rights are at stake in situations in which intellectual property directly or indirectly affects access to proprietary information. This is the case of databases, or similar compilations of facts, which contain personal information. Aggregation of personal data can be conducted by private agents, with or without commercial purposes, or by the government. In the case of aggregation of data conducted by private agents, there has been a sharp rise in the economic exploitation of databases over the last two decades. Certain countries, especially in Europe, grant extensive intellectual property rights over databases or other compilations of facts. In the United States, the threshold for the ability to copyright compilations of facts is tied to requirements of minimal originality, which means that acquisition of monopolistic rights over compilations of personal information is subject to slightly more stringent standards.

Control over personal information is therefore affected by laws governing ownership of and access to databases or other compilations. When personal information enclosed in databases or compilations is transmitted, a potential clash might occur between intellectual property–created rights and privacy rights if the person to whom said information pertains is unaware of the transmission or is unable to prevent it. On the other end of the spectrum, intellectual property rights may help strengthen privacy in the sense that they grant ownership over information, making it harder for other parties to access proprietary content. From this viewpoint, the creation of layers of intellectual property protection over data may function as a deterrent against misappropriation of personal information by erecting legal barriers to access and/or use of personal information and nonpersonal information, such as copyrighted content.

The rise of digital technologies has significantly affected the relationship between content or data protection and privacy, especially where exchanges of copyrighted works in the online environment are concerned. Legal mechanisms entitling copyright holders to prevent unauthorized use or distribution of their works tend to require access to and sharing of personal data of individuals. In addition to copyright holders, Internet service providers play a relevant role in this process.

Liability of Internet service providers was regulated following several copyright infringement lawsuits when peer-to-peer technologies enabled the uploading and downloading of copyrighted works at almost no cost. Through peer-to-peer networks, users can easily share digital files containing film, music, or literary works protected by copyright law. When that sharing has not been authorized, copyright holders may request the IP address of the infringing user from the Internet service provider. The IP address, together with user information stored by the Internet service provider, can be used to track and identify the user. In many cases, either the copyright holder or the Internet service provider and the copyright holder jointly send cease and desist letters to reputedly infringing users, asking them to take down the material and informing them of their intention to enforce their rights.

Digital technology has also enabled lawful and unlawful dissemination of copyright works outside peer-to-peer networks, as in the case of personal webpages or social media. Similar user identification issues arise in this context.

Another area in which intellectual property interacts with privacy rights is regulation of freedom of speech, governed in the United States by the First Amendment to the U.S. Constitution. The First Amendment shields one's ability to convey information without extraneous interference. Intellectual property, in the form of copyright law, protects creative speech through the grant of exclusive rights. For an extended period of time, the author of a copyrighted work possesses a wide array of control mechanisms over that work, including the ability to allow others to copy and distribute the work, with or without compensation, and the ability to prevent them from doing so. Copyright law includes exceptions and limitations, however, that apply to situations in which part of the creative work may be copied regardless of the will of its author. Some of the most common situations include criticism, commentary, or parody. Many countries recognize situations of public interest in access to specific kinds of information as well. Political speech, in particular, or works conveying the personal (and, in some cases, even private) opinions of political figures may override copyright-based monopolies, meaning that parts of the work might be copied, reprinted, or circulated by others. In these and similar situations, privacy expectations and privacy rights may recede in favor of freedom of speech or other copyright-sanctioned goals.

Because of the historical connection between intellectual property and trade, many of the negotiations of privacy-related aspects of intellectual property are connected to sweeping trade agreements. These agreements—which seek, for instance, to impose more stringent sanctions for intellectual property violations, including seizure and destruction of suspected counterfeit or pirated goods—also regulate subjects that may directly affect privacy rights, especially in the case of unlawful uses of copyrighted works in the digital environment.

One of the most salient examples of this was the negotiation process surrounding the Anti-Counterfeiting Trade Agreement (ACTA), a multilateral agreement on enforcement of intellectual property rights that set forth international standards to address the problems raised by piracy and counterfeiting, and regulated ex novo the enforcement of intellectual property rights in the digital environment. ACTA was also one of the first instances of international regulation of intellectual property in which privacy and data protection were explicitly mentioned. This is a major departure from classical normative approaches to international intellectual property because neither the Paris Convention on patents nor the Berne Convention on copyrights covered those issues. While one of ACTA's main goals was to promote expeditious identification and disclosure of the identity of Internet users suspected of copyright infringement, it also urged countries to preserve privacy rights. This requirement was generically anchored, however, on observance of fundamental principles, such as the principle of proportionality in implementing ACTA provisions, which does not detract significantly from the core obligations surrounding user identification in the online environment. The emphasis on expeditious identification of the personal information of Internet users is one of the constants around which contemporary regulation of digital intellectual property revolves.

Throughout the twentieth century, international intellectual property agreements allowed exceptions to ensure compliance with privacy laws or regulations. Recent trade-based negotiations over intellectual property enforcement, while still allowing for some exceptions, emphasize and promote the implementation of measures that are likely to affect privacy, especially in the online environment. This is the case for measures that set expedited processes for identification of Internet users by Internet service providers or that require the cross-transfer of personal data between parties.

The association between copyright ownership and the ability to seek and obtain information about the identity of users, an ability that emerged with the democratization of Internet access, may also bring about other kinds of chilling effects that touch on privacy. As laws permit identification of supposedly infringing users of copyrighted content, there might be cases in which the wrong user is identified. Another possibility is that a user might be identified following a request by a copyright holder, but because no determination has been made as to the actual unlawfulness of the use of the copyrighted work, it is possible that the use in question might have been permissible under applicable copyright laws. In addition to peer-to-peer networks, the growth and popularization of social media, among other types of platforms that enable online dissemination of content, has greatly expanded the number of Internet users that may be subject to identification by copyright holders and/or Internet service providers.

Social media are digital platforms, such as Facebook or YouTube, that enable users to share information electronically. Copyright protects a significant amount of content currently shared on social media. When that sharing has not been authorized, the rights holder may request the disclosure of the identity of a specific Internet user through a process similar to the one applicable to peer-to-peer exchanges. Unlike peer-to-peer platforms, whose relevance has faded, the exponential expansion of social media over the last decade has given popular social media an extra incentive to monitor user activity to avoid costly copyright litigation, which in turn raises further concerns about privacy rights in cyberspace.

Further Reading

1 

Marlin-Bennett, Renée. Knowledge Power: Intellectual Property, Information, and Privacy. Boulder, CO: Lynne Rienner, 2004.

2 

Moore, Adam, ed. Information Ethics: Privacy, Property, and Power. Seattle: University of Washington Press, 2005.

3 

Samuelson, Pamela. Privacy as Intellectual Property? In First Amendment Handbook, edited by James L. Swanson. New York: C. Boardman, 2002.

4 

Silva, Alberto J. Cerda. “Enforcing Intellectual Property Rights by Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy.” American University International Law Review 26, no. 3 (2011): 601–643.

5 

Zittrain, Jonathan. “What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication.” Stanford Law Review 52, no. 5 (May 2000): 1201–1250. [Symposium: Cyberspace and Privacy: A New Legal Paradigm?]

See also: First Amendment to the U.S. Constitution; Social media

Citation Types

MLA 9th
Santos Rutschman, Ana. "Intellectual Property." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0122.
APA 7th
Santos Rutschman, A. (2016). Intellectual property. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Santos Rutschman, Ana. "Intellectual Property." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.