First in time, first in right: WIPO takes the lead on digital date stamping of IP
Frederick Mostert · Journal of Intellectual Property Law & Practice · 2020
The one who is first past the post—whether it is tortoise or hare—wins. This holds true not only in fairy tales but also in life and the law. In the past, water laws operated on the basis that the individual who first actively diverted water from a stream for beneficial use had the first right to use the water. Also, the law of equity often relies on this principle, and the pecking order of creditors is sometimes determined by the priority rule. One of the first dicta on this clear legal principle – prior est tempore, potior est jure – emanates from Roman law texts.1 Fast forward to the present. It is often crucial for tech, international brand companies and design-based businesses to demonstrate convincingly that they are the first to record a new idea, design or code. Most importantly though, it is trite that many intellectual property (IP) cases turn on proving who was the first to establish a specific right. If you are the first person to file a patent application on a new invention such as a uniquely engineered safe-seal bottle top, or a design right application on a uniquely designed lamp or the first to write down words for a new song, which have been going through your head, or you have designed a new website in source code, you are in a far better position to protect the IP in your creation and to win any legal battles along the way. The necessity of proving that their creations were developed first, often do not feature on the radar of designers, inventors, scientists, entrepreneurs, creative spirits and artists. Furthermore, proving that their creations were indeed developed first, can be elusive. This dilemma of proof is equally true for many a start-up and SME business venture. So many copyright cases in practice do not turn on the infringement issue of whether there is “substantial similarity” between the two works concerned, but rather on whether the creator or plaintiff can evidence the fact that he or she is the owner of the work. Although the Berne Convention stipulates that no formalities may be required by member states, in practice, creative spirits are immensely aided by producing official certificates to show proof of when a work existed.2 This is where independent, trusted third-party verification of the date of existence is fundamental.3 Using digital date stamping technology to fingerprint a creator’s file to prove its existence at a given point in time is particularly useful in IP cases in the unfolding digital landscape. Moreover, a quick, easy to use and efficient system that records the crucial date of existence is essential not only for copyright works, but also for inventions, trade secrets, creative and industrial designs and other forms of IP. This is where WIPO has provided a new digital platform, called WIPO PROOF (https://www.wipo.int/wipoproof/en/#:∼:text=WIPO%20PROOF%20is%20a%20new, intellectual%20property%20(IP)%20systems.), to record the critical date of existence for individuals and companies alike. Moreover, the imprimatur and stamp of authority by the World Intellectual Property Organization, as a UN agency, gives the certificate an official seal of authority. Judges and authorities are more often than not impressed by official certificates and producing an internationally sanctioned document will doubtless carry weight in many an IP case throughout the world. Depending upon the jurisdiction, a date stamped certificate may serve as persuasive evidence of the date of existence . As experience has shown, these significant advantages in evidentiary rules, aid creators immensely in legal battles. The function of the digital date stamp is, of course, specific and limited to confirm the creation of a document at a specific timeline. Such a timestamp does not, however, go beyond this formalistic function into the substantive area of IP rights and registration. It should be noted that WIPO PROOF does not confer or show proof of intellectual property rights per se. Nonetheless, as experience has shown, the significant advantage of showing official confirmation of the simple proof of the date of existence may aid creators in legal battles. WIPO is particularly well-suited for this purpose as the pre-eminent IP international government agency with part of its core function and experience built around filing and registration systems. Three cheers to WIPO for developing a much need system for helping individual creative spirits and international companies alike.