I’m taking a quick break from the busyness of 5th Avenue, New York City, to stop into Barnes & Noble and have a look around for any new reference materials. After making my way through a large group of tourists, complete with large backpacks and umbrellas, I found what I was looking for: books relating to legal aspects of IP/IT and the Internet, all neatly situated between the sections dealing with US history and Computers.
Most people, I’m sure, would think nothing of this, but for me the placement of these books was interesting. Just like at Barnes & Noble, IP law occupies a special place in today’s world, trying to bridge the gap between the old and the new, our understanding of the past and our expectations of what the future will be like. Like most other laws it stands on traditions and theories accepted in the world’s greatest legislatures, but, perhaps unlike most other branches of law, it must also adapt to the fast-changing challenges of the technological revolution that began in the 20th century with, in particular, the advent of the home computer, personal media devices and the world wide web.
Does it do a good job? Is information technology ever static long enough for us to assess not just the short term but also the long term value of a statute or a case, (e.g. would State Street be decided the same today? We may get an answer to that once In re: Bilski (renamed Bilski vs. Doll) is heard by the US Supreme Court in November)? Knowing how quickly technology is changing nowadays, should we even bother to pay attention to long term goals? If there is to be any certainty for brand owners, just how willing should the judiciary and the legislature be to re-interpret existing laws or create new laws in response to prevalent business practices, particularly where those practices purport to offer short term consumer benefits (e.g. Google’s AdWords program, or safe harbor provisions which come into play when counterfeiters sell items on eBay)? Have we found the balance between too little protection (as some say is the case in Europe, where inventions for computer programs as such are not patentable, leaving code to be protected by Europe’s (strong) copyright laws alone) and too much protection (e.g. as others say is the case in the US, where both patent and copyright protection is, in principle, available to computer programs which on their face do not seem to be particularly inventive or novel)?
Most people with any interest in thes areas, whether informed or not, have formed some sort of conclusion on these questions. The challenge for IP is to find that elusive happy medium between respecting the essential ancient elements of our judicial systems which have seen us well so far, and not shying away from breaking with tradition when that is what is needed.
But, of course, different groups “need” different things, so the happy medium is likely to remain elusive.