Through the looking glass?
The EU Commission issued the Public Consultation on copyright in December last year, consisting of 80 questions and with a short eight-week response period. The breadth of scope involved not only the usual digital copyright suspects such as territoriality, limitations and exceptions, but also contract law, freedom of expression and data protection. Several of the questions raised chime with references currently (as at the time of writing) before the Court of Justice of the European Union (“CJEU”), notably the much-discussed cases of Svensson, MeltWater and BestWater, which raise fundamental longstanding questions about the application of copyright norms to the digital environment.
As in Lewis Carroll's "Through the Looking
Glass, so too in contemporary copyright,
competing interests must be balanced
It was an ambitious questionnaire for interested parties to respond to, and again provided cause to reflect upon the skills required of IP practitioners seeking success in 2014 of whatever denomination, and whether or not acting for IP owners.
On the one hand, the IP world in particular continues to wrestle with the commercial challenges and legal complexities arising from a combination of a digital “foreshortened future” (think augmented reality, 3D printers, Google Glass), a shrinking geographical world, and, at least from an EU perspective, the lengthy timeframes that can be involved in obtaining preliminary rulings from the CJEU on key issues affecting commercial businesses. The editor has noted elsewhere the time taken to obtain a preliminary CJEU ruling on the interpretation of the EU Database Directive in relation to a business model involving a dedicated meta search engine (Innoweb BV v Wegener ICT). Whilst, on the other hand, the provision of legal services is increasingly commoditised, budgets are limited, there is growing use of online and alternative outsourcing tools as well as the use of Wikipedia to conduct legal research increases.
It might also be suggested that we increasingly operate through the digital “looking glass,” where not only can black be passionately presented as white and white as black, but there are infinite shades of grey. This has been seen in recent times in some of the debate in 2012 around the Anti-Counterfeiting Trade Agreement and last year's backlash against the bicycle brand Specialized when seeking to enforce its trade marks, by way of a couple of examples.
That is not to imply a gloomy assessment: far from it. We may live and work in complex and uncertain times, but the opportunity for collaboration, learning from other jurisdictions and even other disciplines should ultimately be a good thing for intellectual property law whatever your particular perspective. The study on the application of the 2001 Copyright Directive published by DG MARKT at the end of last year referred to a general trend in copyright law, mostly since the development of digital technologies, for the courts to take into account arguments outside of copyright in copyright debates, albeit that such an approach raises questions as to the application of the Berne three-step test. It is suggested that there are parallels between the skills required of the contemporary IP practitioner (technical legal knowledge naturally being taken as read), and the role of contemporary intellectual property in a society facing fast paced change, including being sufficiently flexible to accommodate technological shifts without being unnecessarily technology specific whether in terms of providing advice on a particularly thorny new fact scenario presented by a client or when assessing work productivity tools and resources.
Against this backdrop it is essential for the modern practitioner to have trusted and timely legal resources within the toolkit, to keep abreast of the latest news in intellectual property on an international basis and to do so in a way which is sympathetic to the sense of email overload that many of us feel. The multiple platforms and channels for accessing the Journal of Intellectual Property Law & Practice in the manner most convenient to the reader, which now includes a Linked In forum, Twitter, and of course, mobile blog are to be welcomed, along with the inclusion of alternative and social media based legal content resources within the scope of peer reviews. The value of such tools to the modern practitioner at a moment in time when simply learning by rote or quoting legislation verbatim in client advice no longer cuts it (if it ever did) are significant. Alice would approve.
Through the looking glass?
The Editorial that opens the March issue of JIPLP -- which is now published in full online (contents here) -- is written by Editorial Board member Julia Montero. Julia, a solicitor, is Director, Digital & Commercial Legal Affairs, with Warner Music International Services. Julia's Editorial is published in full, below: