King & Wood Mallesons’ Cate Nagy has noted how “intellectual property protection is critical to fostering innovation and expanding knowledge”, which leads to investment in brands, inventions and content, which, without IP protection, would provide “little incentive for companies and individuals to innovate”.
“Of course, [an] intellectual property system must strike a fair balance between the interests of IP creators and IP users”, Ms Nagy explained, usually in the form of allowing a rights holder a “monopoly right” over the use and exploitation of his or her work for a limited period of time.
She said that striking this balance “is the subject of ongoing debate both in Australia and internationally over the appropriate term of protection for different forms of IP”, whether it be a patent, trademark, copyright or design.
This has become all the more of a challenge with the advent of a “proliferation of new technologies”.
Ms Nagy explained that the Internet of Things, drones, and 3D printing, “all pose challenges for the otherwise relatively static regulation of IP, particularly copyright”.
She called it “a simple fact” that the rate of technological development outstrips (and will continue to outstrip) the rate of legislative reform in this area.
“The law simply cannot keep up with new technologies”, according to Ms Nagy, which, while being considered a challenge, also enables “exciting opportunities for IP lawyers, who must fashion legal arguments in favour of or against IP protection based on outmoded legal principles with limited relevant to these new technologies”.
There is also continuing debate about how technology and social companies should be held responsible “or if they technically even could” be held responsible for infringements of others.
She gave the example of Redbubble’s copyright decisions re intermediary liability as well as the use of safe harbour provisions, and an expansion of website blocking laws at end of 2018 to cover online locations with primary effect of infringing copyright, not simply primary purpose.
Another hurdle Ms Nagy is perceiving is a “rising consciousness of the inconsistency of IP protection across different jurisdictions, which poses particular challenges given increased cross-border innovation partnerships”.
It’s led to increased discussions around harmonisation and highlighted inconsistency in terms of available relief in IP enforcement context, which Ms Nagy said has been given some consideration in the Hague Conference Judgments Project.
At a legal practitioner level, the dispute resolution partner explained that what is being seen is “an increased focus from clients on an approach to risk that measures both legal risk (risk that infringement will be established) and practical risk (risk that an infringement action will be pursued)”.
From her perspective, “IP lawyers can no longer limit themselves to simply understanding the law”.
She said lawyers “need to understand the broader commercial context in which the client’s IP is or will be exploited”, with clients wanting to know about ‘overall risk’.