He knows e-governance is probably the wrong term, but it’s all Richard Gold has to work with for now.
Gold was recently named inaugural holder of a newly-created chair in e-Governance at McGill University. Bell Canada has contributed half a million dollars to promote research between technology,
law, ethics and e-commerce.
“”It’s a bit misleading, because it’s not just about governments, but governance,”” Gold says. “”If you just concentrate on the provision of electronic services by the government, there are the huge implications that entails, and then when you start thinking about the broader regulatory regime, it encompasses how a society faces technology in a global environment.””
Gold spoke with Computing Canada recently about the scope of his position and his thoughts on the evolution of IT patent law.
CC: Where did your interest in the interplay between technology and patent law come from?
Richard Gold: The law school at the University of Toronto in the 1980s didn’t even offer a course on intellectual property, as far as I can remember. It was really not an area of interest. But when I went into practice — I was a lawyer with Torys in Toronto — in the 1990s, it was apparent that there was a lot of work to be done, a lot of creative work. This is one area where there aren’t standard formal agreements and there aren’t standard ways of doing things. At the same time I was doing my doctoral thesis and looking into biotechnology, and I started to see that there were links between these two things. Because there’s been an academic neglect of thinking about intellectual property in terms of new technology, there really isn’t a whole lot of material about it. Not just how to contract it but how to think about it, and what are the implications for governments.
CC: What are the implications for governments?
RG: You keep seeing governments behind the eight ball. They react to the development of new technology once it explodes. In terms of Internet and privacy and so on, we’re always in catch-up mode because we don’t think ahead. We don’t stand back and take a global view of these things.
CC: How has this outlook influenced your teaching?
RG: A lot of the examples I use are intangible goods. I teach about property in news, property in body parts, property in Web sites. I’ve updated the syllabus and instead of concentrating on traditional things like ownership of land, I’ve put a lot of emphasis on these new forms of property. At McGill we revamped our intellectual property course to not only say, “”Well, here’s how to get a trademark and this is what it gives you,”” but the interaction between contract and property and new ways people are staking out rights in information. You can think of ICANN, for example, in regulating domains. I mean, they’ve basically set a private set of property rights and they can impose all kinds of rules on you in terms of what you can use and when you have to give it up. But that’s outside government. One of the basic things governments do is decide who can do what with what. We’re just allowing this privatization to go ahead without really thinking about the consequences.
CC: Intellectual property obviously existed before technology — products were patented and so forth — why is the industry, and by extension government, so unprepared to deal with these issues? Is it just the pervasiveness and the globalization of technology, or are there other factors inherent in it that set it apart from traditional thinking about patents?
RG: Well, I think there are some differences. Part of it is just a question of speed. Most technologies, when they were introduced, had been introduced relatively slowly and in sectors of the economy which grow slowly. We had the time. The way the copyright system evolves is there’s a case, we decide and then people bring up another case. We refined the law over time. Information technology took away that luxury — it just hit us all at once. By the time the courts actually can react, the technology they’re talking about is out of date.
It also is somewhat a different kind of thing that we’re patenting. Before it really did come down in many ways to physical substances, like mousetraps. Even if we used the things for information, it really was about a concrete product or chemical process. When you get into IT, you’re crossing the boundary of pure information, which is traditionally held to be outside of patent law. So when you get into the United States things like business method patents and so on. The technology itself has given rise to ability to create private ways of protecting it. They no longer have to rely on intellectual property. For most software, to go for a patent would be completely useless — the life span of the software is much shorter than the time it would take to get a patent. So you’re going to install technology that prevents reproduction, and that technology has shifted some power back. The balance has shifted before between users and providers, but it shifted quickly, before we could react.
CC: There’s been suggestions that IBM and Xerox may not have been as vigilant as they should have been in terms of protecting their intellectual property as they made discoveries. On the other end of the spectrum we have companies like British Telecom trying to prove they invented hyperlinks and charging ISPs royalties for them. Is this a natural part of the cycle in an evolving industry, or this going to be an ongoing process?
RG: You have to go back to why we give patents. We give them to give people an incentive to create things in the first place, then to disclose it and then to put it on the market. If you think about a business method patent, you don’t need a patent to do that. A business is naturally going to create new ways of doing business. That’s what businesses have been doing for centuries. If it works, it’s going to be disseminated by the mere fact that the company is successful at it. We have sort of lost our roots and aren’t asking ourselves a lot of the right normative questions like, “”Why are we doing all this?”” When you’ve lost that normative base, you’re in the Wild West, and everything goes.
Until the 1990s, the main assets of companies were still physical objects. After that it became immaterial objects. In hindsight, we can say these people weren’t vigilant, but nobody was.