Digital IP

Exclusivity is the calling card of intellectual property law and the primary driver for the continued expansion of IP protection to new types of work, modern technologies and revolutionary expressions of human intellectual activity. On the other hand, Internet-based technology is driven by the central concepts of free access, peer exchange and rapid reproduction.

It was therefore inevitable that the exponents of IP law and IT (information technology) would arrive at opposite sides of the divide. Over the past decades, IP law was required to adapt to the increased threat of Internet-based file sharing to copyright protection (specifically sound recordings and software), the question of liability for hosting infringing material in peer-to-peer file sharing services and cloud storage, unlawful competition and trademark infringement on websites and cross-border flow of proprietary material.

Unfortunately, the law is, by default, slow to respond in comparison to the pace set by the digital environment and ideologically opposed to the essentially free nature of the Internet.

IP law awards the user a monopoly over the application, reproduction and distribution of his work that, in turn, facilitates the commercial exploitation of such work through licensing fees, royalties and other contracts.  As a result, IP law stimulates the production of knowledge-based products by offering legal protection and access to the channels of legitimate commerce.

However, unlike any technological challenge it has faced before, the Internet has drastically upset the balance between individual and public interests in intellectual property law.

While IP law attempts to reward the author or creator for his efforts by limiting access to certain information, the Internet requires an unobstructed flow of information between individuals. In addition, while the law protects IP, the Internet is entirely unregulated and essentially public. As a result, the balance between individual interests (reward for effort invested) and public interests (access to quality products) established by IP law is tested by the proliferation of IT-based means for creating, accessing and distributing work without any remuneration to the IP rights holder.

In addition, the demands of a rapidly growing economy in a developing state emphasises the need for a sophisticated IP regulatory regime that allow access to knowledge from everywhere in the world at no or little expense.

At the same time, IP law is required to maintain the same level of protection for IT-based work as it affords to other work without stifling innovation.

Consequently, the rise of free or open source software and the creative commons attempt to do away with the need for IP law protection in exchange for social, moral or contract-based forms of reward.

Therefore, if IP law is to survive the upheaval of the Internet, it is essential that the study of IP law include an analysis of IT-based technology that is sensitive to the nature of IT and the nuances of current and future innovation in this field.

The pace of development in IT is often understated while the level of expertise required to fully grasp its legal repercussions continue to grow. Certainly, therefore, it is no longer sufficient that IP law practitioners possess only a cursory knowledge of IT. Similarly, as each field of IP law requires a bespoke approach to a specific manifestation of the human intellectual endeavour, so should a study of IP in the digital environment approach every distinct area of IP law with unique care and sensibility.