Building a model for an information property framework

Abstract

The paper argues that intellectual property has become fixated on a few unchanging postulates, categories and rules even while society is transiting towards a new era, that of information; such a transition makes serious reversals of thinking in intellectual property timely. The paper outlines the fundamental cracks in intellectual property that have become more prominent in the last two decades of the 20th century and suggests a model for integrating it into the emergent information society. The model proposes to transcend the disparate tendencies in current forms of intellectual property. The paper concludes by pointing to the need for establishing a tool of measuring creativity that could be crucial for such a model.

Notes

1 BBC News, Death of video recorder in sight, 22 November 2004; accessed at http://news.bbc.co.uk/1/hi/business/4031223.stm on 31 January 2005.

2 Ibid.

3 Susskind, R. (1998) The Future of Law: Facing the Challenges of Information Technology (Oxford: Clarendon Press).

4 In his account of ‘law and policy-making’, Cornish points out that, the field of intellectual property has winds of change tearing through it from various directions’. See, Cornish, W.R. (2004) Intellectual Property: Omnipresent, Distracting, Irrelevant (Oxford: Oxford University Press), at v. Yet, his entire approach seems to discount the severity or depth of the changes pressing against IP. He merely iterates, ‘Trying to keep track of them all, let alone measuring them, is an exhaustive endeavour’. ibid.

5 Thus Cornish asserts, ‘“Intellectual property” may now be a convenient genus, but its various species remain distinct.’ See, Cornish, W.R. (2004) Intellectual Property: Omnipresent, Distracting, Irrelevant (Oxford: Oxford University Press), at p. 5.

6 Vaver, D. (2000) Intellectual property: the state of the art, LQR 116, 621.

7 ibid., at p. 624.

8 ibid., at p. 627.

9 ibid., at p. 636.

10 ‘Creativity’ is defined by the New Encyclopaedia Britannica (2003) as ‘the ability to make or otherwise bring into existence something new, whether a new solution to a problem, a new method or device, or a new artistic object or form’.

11 Pub. L. No. 105 – 298, 112 Stat 2827.

12 Mitchiner, J.P. (2003) Intellectual property in image—a mere inconvenience? Intellectual Property Quarterly, 2, 163, at p. 171.

13 Reichman, J.H. (1994) Legal hybrids between the patent and copyright paradigms, Columbia Law Review, 94, 2432 – 2558.

14 Article 7(1) obliges member nations to ‘provide for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or a substantial part, evaluated qualitatively and/or qualitatively, of the contents of that database.’ Sub. Article (4) adds that such a right ‘shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights…’

15 International News Service v Associated Press 248 U.S.215 (1918).

16 Blacklock v Pearson [1915] 2. Ch.376.

17 Ladbroke v William Hill [1964] 1 WLR 273, HL.

18 Independent Television Publications v Time Out [1984] F.S.R.64.

19 Ladbroke v William Hill [1964] 1 W.L.R 273.

20 Article 11, the WIPO Copyright Treaty of 1996, obliging members to provide ‘adequate legal protection and effective legal remedies against’ anti-circumvention technologies; Article 12 similarly obliging members to provide ‘adequate and effective legal remedies against’ tampering with ‘rights management information’.

21 In the US, this took the form of the Digital Millennium Copyright Act (DMCA) of 1989; in the EC, the 2001 Copyright Directive absorbed the WIPO treaty and was soon followed by member states including the UK, which issued national legal instruments.

22 See, Endeshaw, A. (2004) Reconfiguring intellectual property for the information age: towards information property?” The Journal of World Intellectual Property, 7, 327, at pp. 359 – 362.

23 (1769) 4 Burr. 2303.

24 (1774) 2 Bro. PC 129, 4 Burr. 2408.