THE CHALLENGES TO COME: INTELLECTUAL PROPERTY ISSUES FOR THE NEXT ADMINISTRATION

Over the last year, public debate has been dominated by the agendas of the Presidential candidates, who have focussed on Social Security, Medicare, tax rates, and other topics. Unfortunately, some of the most important issues, in terms of their effect on the United States' future prosperity, were never mentioned. Moreover, these issues are rarely the focus of the vast majority of the members of Congress.

I am referring to the welter of outstanding issues regarding intellectual property law, which includes patent law, copyright law, and trademark law, and affects the media, motion picture, music, computer, and pharmaceutical industries, to name a few of the most powerful. How these issues are decided will define the extent of this nation's devotion to liberty, creativity, and prosperity in the twenty-first century.

The following is a sampling of issues that need to be placed at the top of this country's legal agenda:

The riots in Seattle during the World Trade Organization gathering were an embarrassment to the Clinton Administration, but they should have come as no surprise. In the new global environment, law is being made at the international level without input from — and more importantly, without meaningful accountability to — the people.

When the people discover that laws are being applied from on high, one can hardly expect that they will respond with respect and automatic obedience. Their resistance is inevitable because they have not been a part of the process by which the laws were made: It is legislation without representation.

As a result of this process, although the people do not make the law themselves, they still honor it, because the law is made by their elected representatives. The assumption is that the people's needs will be paramount in their representatives' deliberations, and that the people hold the power of the vote over those representatives, as well as the power to communicate with their representatives. It is a deal that yields obedience. In the absence of the deal, obedience is not a given.

Currently, the deal is being broken. The Administration has become a vast bureaucracy, and Executive Agreements, which need not be ratified by the Senate, have become the order of the day. As a result, neither the people's votes, nor their direct communication with their representatives, are integral parts of the creation or operation of international law, including the law that controls many intellectual property issues. The result has been a dangerous lack of accountability, and an increasing sense by the masses that they are disenfranchised, and that lawmaking is illegitimate. The next Administration must think carefully about how to reintroduce legitimacy into the role of the United States in the international lawmaking process. One way–consistent with the plain letter of the Constitution–would be to forego the temptation to enter international deals that circumvent the Senate.

There is one example where important decisions that implicate the freedom of speech are being made under no governmental umbrella: The determination of trademark domain names is being made by ICANN, an international organization that is an ad hoc gathering, governed neither by elected representatives nor by their designated intermediaries. Despite its unrepresentative character, ICANN is making decisions that affect every person in the world. As it struggles to create its own governing structure without paying serious attention to the problem of accountability, it is dooming the future legitimacy of its decisions.

The truth of the matter is that the people have had little input on intellectual property issues, at either the national or the international level. The reason for this is that intellectual property law, so deeply intertwined with some of our most successful industries, has traditionally been treated as a species of trade law. And traditionally, trade law has been driven by industry, not the people. That is a mistake, because the law governing creativity, including the constitutional dimension, is the heart of this successful capitalist economy and government. It is also crucial to the liberty of the people from a potentially tyrannical government.

The tradition of treating intellectual property law as though it only affects industries and not the people needs to change, and change quickly. If the people understood how their interests will be affected by these decisions — especially those I will describe below — then they might insist on a larger role and more accountability.

There is a worldwide movement afoot to endow those who create databases of information with rights in the bits of information they compile. The European Union already recognizes a right of database creators to control small amounts of information contained in their databases. And our own House and Senate have both seriously considered bills that would protect not only databases as a whole, but also the bits of information within them.

These bills should not succeed. Commodifying bits of information will cripple the robust marketplace of expression, deter the creation of creative works, and violate the Constitution in a number of respects. Both the enumeration of powers and the First Amendment counsel against such protection.

They may sound crazy to the average citizen, but these are serious proposals that surely will be renewed. The people will be the losers if such data legislation is passed. The question is whether the people will be any the wiser until the moment when, after the legislation has already been passed, they notice that a news organization was able to charge them for the use of a piece of information garnered from reading an e-newspaper. By then, it may be too late for their outrage to be effective — for it is much harder to repeal legislation than to block its passage.

Today, there are no issues more difficult than how to route information, how to protect information, and what rights to recognize in private and public information. The hardest question of all may when information must be disclosed.

The computer is not only a friend of efficiency and disclosure, but also the enemy of privacy. Now that its capacity to contain and organize huge volumes of information has been combined with the Internet's capacity to share that information, every time a person interacts with another–whether it be a business associate, a family member, a doctor, or an employer–there is a real possibility that that person's private information can and will be disclosed. Conversely, what are we to do about the roving criminals on the Internet who disguise their real identities but that harrass those with whom they disagree or, much worse, children?

There is, in fact, a complicated jurisprudence of information already in place, but the new technologies have blinded many–including the courts–to the full contours of its existence. It is high time to bring this complicated jurisprudence to light, as a background for decisionmaking, and to think deeply about the ways in which it needs to be adjusted in light of the new technologies. We do not live in a new world requiring a wholly new law, but we do need to re-orient the law to take into account the impact of these new technologies on our precious liberties.

The 1976 Copyright Act, unfortunately and unintentionally, set into motion an industry practice of requiring authors and artists to sign work-for-hire agreements. The artists affected include songwriters, performers, photographers, and writers, among others.

These agreements transform the person or entity who merely commissions a creative work into the work's author, for all legal purposes. Why does this matter? In part because authors generally have the right to recapture works 35 years after an assignment has been made, but they lose that right if they sign work-for-hire agreements that make the commissioning entity or person the new "author."

For the artist who has no idea how successful his or her work will be at the time of publication (and few can accurately predict the precise future value of a creative work in the marketplace), this "recapture" right is highly valuable. Yet, since 1978, thousands, if not millions, of works have been acquired through work-for-hire agreements offered on a take-it-or-leave-it basis to artists, all of whom may have, according to the contract, lost their recapture rights.

The courts have the statutory and constitutional tools to invalidate the abuses that have occurred to date. But it remains to be seen whether they have the moxie needed to do so, especially in the face of the industries' inevitable claims that these agreements are merely an unobjectionable "industry practice" or "industry standard."

Though surely not the headline-makers during the Presidential campaign, these issues will fundamentally shape the quality of our individual lives in the near and distant future — for they will affect the quality, quantity, and accessibility of creative works; the extent and character of our privacy; and the power of creative artists to capitalize on their contributions to society.