Intellectual Property - The Global Battle Between Old and New

There is a sea of change occurring with respect to intellectual property rights as reflected in continued modifications of international and domestic law. These changes result from an attempt to reconcile the methods and manner of doing business in a new digital age; the “Business Revolution”. In many respects, the essence behind the legal evolutions, as more fully described herein, is a battle between intellectual property owners of the past, involving outmoded paradigms, and the new “Business Revolution”  players. On this stage, the complexity of the matter and the attempts to manipulate the law, represent one of many struggles pitting the old against the new. As with the prior historical economic and social shifts, the agrarian to the industrial, and the industrial to the information age, the struggle is over before it started. While there will be pauses along the way, as those vested in the past attempt to impede the advance of a new order, the past paradigms will fade as a result of unstoppable economic and global change. Nevertheless, the topic and the associated dynamics are worth thoughtful exploration and illustrate the motivation and dynamics behind the evolution of this important topic; a cornerstone to the new order of creation, ownership and knowledge.

"One of the biggest mistakes one can make when considering the globalization of intellectual property law is to assume away the increasingly contentious politics of the phenomenon. This is not to say that the emerging politics of international intellectual property law are simple, easy to understand, or unchanging - quite the contrary is true. However, we should resist the understandable tendency to reach for a quick, technocratic set of Procrustean tools that assume away the 'messiness of the world' and make it seem that concepts such as 'sovereignty' and 'property' should be, are, or always have been, particularly stable constructs" (Aoki, 1998b).

Analyzing the globalization of information and its impact on international and domestic intellectual property rights and legal regimes is a complex undertaking. A good starting point is to define the components of the issue: i) globalization, ii) information, and iii) intellectual property. A review of available literature shows this to be complex: Numerous academics and legal experts bring varying ideologies and different views on these components.

Some view globalization as a means toward strong national and international economies; others think globalization represents the increasing influence of developed nations and multinational entities. A major challenge in assessing globalization is the impact on the sovereignty of nation states. How can the independence of nations be navigated in light of an ever evolving and interrelated world? Globalization, at its core, is really the undoing of old paradigms in a new world driven by a more empowered citizenry that will ultimately render the political structures of the past irrelevant. In fact, this recap of relevant intellectual property rules and controls confirm this point.

With respect to information, a common view is that the Internet and the digital environment promote productivity by freeing information; others object that information is being commoditized as a result of its digital form and the ease of its flow across sovereign borders. Many view intellectual property rights as a natural aspect of individual creative products; others believe intellectual property rights have developed into a tool to serve the large economic and monopolistic interests of information-rich states; many others view them as an irrelevant concept having no meaning in a new digital age.

Regardless of philosophical tenants, the topic of international intellectual property law is complex. The matter includes numerous domestic legal systems, regional and international regimes and multilateral and bilateral treaties and agreements. As international or regional treaties or agreements are adopted, responsive or agreed changes to domestic law take place. Such domestic changes further drive changes to international or regional systems and, in turn, to domestic laws of other nations, as nations attempt to keep pace with each other. It is a complicated web, but one that was and is being created by existing structures designed to serve past constructs being used to address a new order. Hence the battle that ensues.

Assuming a satisfactory understanding of the central components of the issue, further complexity is encountered in an analysis of the issue itself. Assessment of the implications of globalization and digitalization of information on intellectual property systems is also a value-laden exercise, partly driven by ideology. Some cite the promise, economically, of new international or multilateral intellectual property agreements and philosophies prompted by a global and digital era. Others see, among the consequence of globalization and digitalization of information, the offer of reward only to certain players, namely developed nations and multinational corporations, and/or the information-rich

Globalization is being accompanied by more intellectual property protection, internationally and on many domestic fronts. In his review of Boyle's book, Shamans, Software and Spleens: Law and the Construction of the Information Society, Leith (1997) cites, increasing intellectual property rights and the increasing power associated therewith: "It seems to be difficult to push back the hegemony of increasing intellectual property rights. Everyone is currently claiming “a slice of the pie” and legal minds are setting out ways that more slices can be taken from a bigger pie." Leith suggests more is coming within the reach of intellectual property laws "because people have stopped asking what intellectual property is for and whether it is doing any good."

Considering international intellectual property law changes from the U.S. perspective, Crews (1998) sums up the changes, "The economic pressures and the growing international significance of copyright have led to new law. That new law is overwhelmingly in furtherance of expanding protection, easier protection, and longer protection. Moral rights, database protection, technological controls, extended copyrights, eliminated formalities, and even restored copyrights that were long in the public domain are symptoms of a legal regime of extraordinary and rapid growth." The reason for the growth is the obvious growth of the “Business Revolution”. The rate of change is being driven by players who own intellectual property assets more valuable in the past paradigm. Time is running out and these players know it.

Crews notes that the proponents of this expansion of intellectual property protection in the U.S., is similar with changes made in Europe, and cites domestic economic justifications:

"…the extended term of protection may generate twenty more years of commercial revenue for many economically viable works. Much of that revenue may come from foreign countries where many novels, motion pictures, and other U.S. works from the early twentieth century continue to find a market. The economic argument translates not only into greater revenues for U.S. copyright holders, but also into the subsequent tax revenues, employment prospects, and shareholder profits that accompany expanded business. Moreover, if those revenues are derived from foreign markets, the strengthened protection and longer term of protection for copyrights may also help shift the balance of international trade in favor of the United States."

In other words, the old players are looking to hold onto and maximize the value of their property before it becomes invaluable as the result of the “Business Revolution” and the new order of conducting business that is replete with new open, shared and collaborative methods of adopting and creating. These methods will rock the present approach to and contemplation of the very nature of what intellectual property is.

In comparison to domestic, pragmatic and economic arguments, Crews views strengthened intellectual property rights which do not include a corresponding balance of the public interest. Recognizing that copyright law was intended to achieve a balance between preserving a public domain or commons of ideas and providing incentive for creative under takings, he suggests public domain is neglected in the trend toward the maximizing approach to intellectual property rights. Increased protection of necessity, for example, is accompanied by limitations on the scope of the public domain and a reduction in affordable resources available for new creators, whether individuals or business entities. Crews points to limitations on the application of the U.S. fair use doctrine as a consequence of a focus on greater intellectual property protection. Other consequences he suggests are potential limitations on technological advancement resulting from restrictions on use, and loss of learning opportunities resulting from restrictions on dissemination or public performance of works.

There are different ways of understanding the issue of the implications of globalization of information on intellectual property laws, and these derive from different ways of understanding the basic concepts. The writings of recent years are packed with discussion of globalization and the growth of digital information, and the influence these developments are having on domestic and international intellectual property regimes.

A clear effect of globalization of information is a trend toward a standardization of intellectual property laws, in order to provide greater protections. While this trend appears to relate to positive economic outcomes, the prose of recent years suggests that these effects may be positive primarily for intellectual property producing nations and transnational corporations. It may also be diminishing the sovereignty of states in favor of the strength and power of private entities. It is possible that the prevalence of such writings in the literature is a response to the movement toward harmonization and stronger intellectual property protections - an attempt to ensure some of the less heard voices are expressed. In the end, the pressures that result from the sea of change and the irrelevance of past constructs will render the attempts to protect and control intellectual property for the benefit of a few ineffective.