HEADFIRST INTO THE FUTURE

0D26E20C-54ED-47DF-9FD4-CE0DE9CFD770ECTA 35th Annual Meeting in Dubrovnik is over. I enjoyed it very much and am proud to have assisted in its organization. I am especially proud to have been given an opportunity to introduce my understanding of the future of the intellectual property law and of the general shift of the role of law in modern societies. I was given an entire one-hour session on the last day of the conference to present and elaborate my views under the title: Rogue Waves and Crosswinds: Trademarks in Motion. I am also thankful for the questions that ensued after the presentation.

For the first time in its history ECTA published a daily conference bulletin. The bulletin featured some of the speakers each day via short interviews. It was Mark Dugdale of Asset Servicing Times, a Black Knight Media Ltd. publication, who prepared the feature on Session 8 where my views were presented ahead, in a column called Session Spotlight, under the appropriately rocking title: Digital killed the legal starFollowing is the article itself:

ECTA’s Mladen Vukmir discusses the past and future of intangible assets in a digital, networked world, finding that the law might be too far behind to catch up. Mark Dugdale reports

Your session is entitled ‘Rogue Waves and Crosswinds’–will the disruptive nature of the digital world be the focus, or have we moved beyond that? Let’s me put it this way–we ain’t seen nothing yet. Despite the digital revolution happening almost two decades ago, or more recently if we pinpoint the beginning as the introduction of the worldwide web, I’d argue that we are closer to the beginning of the transformation than its end. In practical terms, the best example is the music industry. The force of this technological change has reformed the business entirely, totally redefining users’ wants and needs. The movie industry was next and the developments did not stop there.

Has how we consume content really changed that much? I’d argue that society is continuing to dematerialise its reality. What used to be material, for example, a musician playing a song to an audience, became an analogous record. Then, with digital technology, its nature changed. The song became a copy, or equal to the original. That is not the same as the analogous mediums. Now, previously material objects, for example, a tennis shoe, will become digital files, shareable like a song and likely printable. Advanced printing by nanotechnology, for example, has the potential for us to be printing our shoes via our desktop computer at home in a decade.
In such a scenario, we might still be buying our laces, but the implications are profound. What happened to copyright owners when copies of their works became instantly shareable? The same could well happen to shoe brands, faced with the possibility that their once intricate and complicated designs could be replicated at the press of a button.

Isn’t what you describe simply counterfeiting and piracy, both age-old problems? Piracy and counterfeiting are remnants of the analogous age. Now we have perfect copies and instant shareability. I’m not sure this is merely piracy and counterfeiting anymore, but something much more disruptive.

How is the law reacting? My major concern is that the legal profession has lost a lot of credibility over the past decade by failing to listen and repeating the mantra that the law can adapt. Systems are undergoing fundamental changes that, in my opinion, the law has failed to grasp. Consistency has been forgotten in favour of the case-by-case basis as the increased number of increasingly different transactions simply cannot be dealt in any other way. The law needed to set a good example over the last decade but I think it has failed to do so, so much so that I worry society might conclude that it is failing its basic test, to provide guidance.

Can the law ever again provide that consistency, and by extension, become the guiding hand once again? To quote on Croatian academic: “We won’t see consistency in legal systems during our lifetime.” I think that says it all. Whether the law will be able to keep its central role is questionable because of that lack of consistency. Laws traditionally provide guidance and without consistency, society will inevitably reconsider its usefulness.
Having said that, I don’t think, ultimately, it’s inconsistency that’s hurting the law, but complexity. It’s so at odds with how we run our societies today. A few decades ago, a legal document was carefully crafted and painstakingly built into a unique piece of knowledge by lawyers. Nowadays, a legal document is often just a form to be signed that glances at typical situations, while complex legal issues, the disputes, are being dealt with by alternative dispute resolution.
Uniform Dispute Resolution Policy (UDRP) proceedings are a good example, as are the mechanisms of content platforms and social media. They don’t have law so much as rules, or preferred business practices. They are so unlike legal systems that they don’t even provide for appeals. I figured that out during a UDRP case that I oversaw. One of the parties wanted anonymity, which was unusual because the decisions are published online and are publically available. But I decided, referring to UK privacy law, that the party was entitled to this anonymity. That practice has persevered in the intervening years, even though it doesn’t constitute law. These types of business mechanisms are not necessarily going to be consistent, but they exist and a resolution of sorts exists.
Now, I don’t mean to sound dramatic. The law isn’t going to disappear, but it’s like the concept of layering in technology. The TV didn’t kill the radio, and the radio didn’t kill print. They just shift. This is what I think is happening with the law. The rule of law is losing its position as the central axis of how we run society.

But laws can be changed, can they not? Take the examples of the Paris and Berne Conventions, which, in my opinion, are two zombies. We prop them up because, politically, we cannot come up with new treaties. There is no agreement in the world. When the multilateral system that we have for negotiating treaties is broken down, there is a proliferation of regional and bilateral treaties, championing the rights of territoriality enshrined in the old conventions. The Berne and Paris Conventions are not serving modern businesses and economies properly. There is the European single market which is an early beacon of the direction we are going to, followed by the emergence of the digital single market, which is global. It’s affecting the whole principle of territoriality, on which the conventions were built. The principle makes no sense for modern society.
In addition, it’s not only territoriality that has changed but the forms of creativity too. IP rights were created to fit certain forms of creativity. But what has happened? The nature of creativity changed. We once had gifted individuals inspired to create, but they were few. Today, everyone is a creator. We have this constant churn of creativity that knowledge-based economies are constantly producing. The result is it’s not perfectly aligned with what we were protecting when we first designed IP rights. We just can’t fit our creativity in those existing categories.
We live with these zombie conventions and pretend they work, but they don’t. The whole system of intellectual property is not very strong with these conventions at its back.

Mladen’s discussion, ‘Rogue Waves and Crosswinds’, (was) the eighth session of the day, taking place at 2.30pm. He (…) elaborate(d) further on the past and future of intangible assets in a digital, networked world.

The video recording of the session was made and it is expected that videos will be available in September. If they will be made public I will post the link for those of you who are interested to learn more on my views. I will be happy to have your views and/or questions now or later.

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