Sailing Beyond Paris and Berne
“We cannot become what we need to be by remaining what we are”
Max De Pree
Modern societies are witnessing the changing role of law upon accelerated growth in the quantity of information, modifications of knowledge structures, and information processing possibilities. Without the rule of law and the role of intellectual property within the legal system humanity would never have reached the level of growth that led it into the most prosperous part of its entire history.
Nowadays, however, many observers note that our legal systems, which were designed to produce uniform results, find themselves increasingly at odds with the needs of contemporary societies to have diverse outcomes available in order to satisfy the wide variety of business models and relations that coexist. Accordingly, our legal systems are coping with the increased differences in factual patterns that complex contemporary societies are generating. The resulting inconsistencies and the inherent slowness of the legal process are increasingly at odds with the fast-moving pace of the economy and technology. As a consequence, we are witnessing increased hardships with which the legal system provides for one of their most important traditional roles – to serve as guidance to their societies.
The very central pillar of the traditional role of law came under pressure in modern complex societies, as the stability it used to provide to every society ruled by law, became the cause of instability under the new conditions. In the complex systems, such as our modern societies increasingly are, any point of stability is bound to increase the overall instability of the system, just as a rock protruding through the foaming whitewater does add complexity to the flow. Fewer points of stability in a volatile environment might increase the smoothness of its state.
Different challenges of this kind are easily visible if we focus on intellectual property systems. Throughout the last century and a half, the functions of copyright law and industrial property law have experienced unprecedented changes in their fields of application. Since digitalization started, and global digital networks enabled our economies to switch to the digital domain, we are witnessing profound changes in the forms of human creativity. Our societies did not adjust easily, nor did they yet manage to cope with the changes profoundly enough to escape the stress. Patching up the systems designed for the different environment might not be a path to the greater efficiency of our today’s environment.
In the last two hundred plus years, our societies have demonstrated certain difficulties of grasping the nature of intangible creativity and trying to form a new form of property right over it. It could be said that even though a couple of centuries have passed since our artists and businesses started relying on their intangible assets, our societies are on many points still struggling with accepting fully the underlying concept of intangible assets. In the meantime, and without fully embracing the intangibles, yet another set of very different intangibles emerged as a perceived asset. Data, intangibles that are not created by human creativity has joined the club of the most valuable assets for the modern industries, and in the form of privacy protection is gaining in profile among the individuals.
A hundred and forty years ago when Paris and Berne conventions were conceived to shape the authors' rights’ and industrial property systems in an attempt to harness the value of human creativity, unlike the ways that the historical societies knew. At that time, creativity was perceived as an extraordinary activity achieved by the inspiration of a highly gifted individual. Nowadays, most of the human creativity is done as an everyday, mundane, serial activity based on sheer knowledge, performed by almost everyone in knowledge-based societies. On top of that, intangible assets created by harnessing and harvesting humongous amounts of data by human and machine efforts are becoming a form of the asset as valuable as intellectual property and energy ever were.
This fundamental change has brought about many unexpected metamorphoses of not only how we create, but also how we understand and apply the rules regulating human creativity. Law grew complex to the border of inherent inner contradictions, its original role of providing guidance at odds with its growing complexity, inconsistency, and slow pace of its application. At the same time, complex societies we are now living in are requiring elevated complexity and flexibility in order to be able to continue developing. By developing in what can almost be described as a cancerous growth, law has become complex to the degree that some social actors of change started considering it more onerous than helpful. An increase in the role of mediation as an essentially non-legal dispute resolution method is but one of the signs of this perception. Organizations such as Commongood.org are finding ways to push the social discourse into examining the future role of the rule of law in democratic societies. Most dangerously of all, in many a country, the general population started accepting the idea that introducing non-democratic means of governance has some advantages over democracies. To me, it means primarily that law needs to be streamlined to achieve the flexibility and efficiency that it is now lacking.
Not only did creativity change. Forces of globalization, and not only globalization in the political sense, but primarily in logistical and spiritual, have challenged the traditional order impacting the central social principles of sovereignty and territoriality. Of course, the Berne and Paris IP order was based on the traditional perceptions of territoriality, specifically those prevailing in the nineteenth century. In spite of the recent backlash against globalization, our perception is that the actual globalized integration is irrevocably progressing in spite of the political setbacks. It is the digital domain of the internet that made the global connections a fact almost as hard as, for example, the basis of the second law of thermodynamics.
Its scientific concept of entropy teaches us that, for example, a bottle of ink spilled into a pool is physically impossible to recoup into the bottle from which it was spilled. It became very difficult to imagine how can any untangling of the global population happen ever again, barring some catastrophic collapse of our civilization. The planet has truly become one, and territoriality has become a burden in tackling many problems, especially those that are inherently global such as environmental threats, and I would add, finding the best way to regulate creativity. All of us in the intellectual property field understand and accept that creativity is the best-distributed resource of all. This is why, after hundred fifty years we need to open up the dialog on what kind of system, legal or otherwise, will extend the Paris and Berne based intellectual property system that served us so well for so long.
In order to be able to do this, we need to go back and examine the constants and discontinuities in the legal protection of creativity. This is best done not only by legal but through other types of analysis that lawyers were traditionally unwilling to conduct, such as semiotic analysis of the language used to draft and construe the rules and sociological and economic analysis of the relations that are morphing in our societies before our eyes.
Businesses have already noticed that keeping the IP rights neatly boxed in their nineteen-century compartments is not adequate for the creativity that modern industries deploy in developing their products. The same challenges are visible to the artists who are dealing with the issues of free expression since the emergence of conceptual and pop art. This development clearly pushes towards merging the principles of copyright and freedom of speech law. Shifts of this kind are the reason why we have long started speaking of overlapping intellectual property rights and why our associations moved from being dedicated to a single IP right to all those related rights that we use to protect the results stemming out of the single and singular human creative capability.
To a keen observer, it will sooner rather than later become clear that it is always authors' rights that will be first showing the inadequacies and the direction in which the entire IP universe will start changing. The accumulated and mounting inadequacies and the inability to meaningfully reform the copyright world is a clear sign of the difficulties the other Paris IP worlds will face and an indication that the Paris and Berne conventions are now confining such meaningful change. It is dawning on the IP professionals that the movement towards space beyond the confines of the centuries-old IP system has become desirable, if not inevitable.
A strong upsurge in creativity seems to be closely followed by a proportional upsurge of copying. As we all know, the onset of new digital technologies in the copyright field has led to a significant increase in unauthorized copying. Once we digitize other formats of human productivity and creativity, we are going to be exposed to the similar growth of copying of the objects of protection of other IP rights. By now it is becoming abundantly clear that choosing law as a principal tool in combating counterfeiting and piracy might not have been the right choice. One could even assert that, in light of the constant growth of counterfeiting trade, choosing law as a principal tool in combating counterfeiting was an inferior choice and that the results might have been different otherwise.
The challenge we are facing is that even those lawyers who are thinking about innovation seem still to believe that the innovation is confined to introducing new legal services or products and then finding novel ways to market them. Not many seem to understand that lawyers owe to their societies' innovations in managing social relations in new ways as well. If we accept that one of the basic tenets of contemporary societies is innovation and that it must be pervasive in all fields of social activity, one starts wondering why the legal profession would be excluded from it. Innovation cannot remain the monopoly of consumers or any other industry as in modern societies all social participants need to contribute by innovating. Those lawyers who miss this will really risk being increasingly seen as a burden to their society.
Whilst the text has no intention of proposing strong conclusions on possible changes, several theses emerge. Advancements are likely to occur, but hard to anticipate as the scope of social changes is also unprecedented, and the nature of the digital medium is radically dissimilar from analog mechanical reproduction means. Changes within the legal system will not involve only copyright and other rights of intangible human creativity results protection, but an overall change of the role of law within societies
After an initial denial and a protracted period of reluctance, the IP community seems to have acknowledged that without seizing the momentum it might become marginalized in the discussions on its own field of expertise. It is therefore paramount for the IP, and specifically trademark communities, to leapfrog their reluctance in tackling these complex issues.
Mladen Vukmir is 1st Vice President of ECTA.
Views in this text are entirely his own.