Understanding technology's impact on intellectual property law

There is no question that the Internet has revolutionized the way we access information. With a click of a button we can now access and move great volumes of information in no time.

While most people welcome this free flow of information, it presents a challenge for intellectual property law, which regulates copyrights, trademarks, patents and trade secrets. Professor David Levine, who teaches Internet, intellectual property and contracts law at Elon University School of Law, says the process of translating and applying intellectual property law to the intangible products that move through the Internet has not been an easy one.

“Whether you like it or not, if you use technology, you have to think about intellectual property because the law is designed to build those proverbial walls around these kinds of inventions, these kinds of works of authorship,” Levine says. “How high those walls should be built, what entry and exit points should exist on those walls, and whether we should have walls at all, are all questions that the Internet has forced upon everyone – consumers of intellectual property as well as creators of it.”

And while those engaged in the law continue to struggle to find its place and role on the Internet, Levine says one area that does not seem to have been challenged by the Internet’s open, unrestricted infrastructure is trade secrecy. Levine’s research centers on the impact technology has on intellectual property law as well as the law’s impact on public and private transparency and accountability. He also has a radio show and podcast called “Hearsay Culture,” which features interviews with a wide range of guests discussing various aspects of technology and intellectual property law.

Levine's research has found that trade secrecy law is not only allowing businesses to keep information from competitors but also from the public, even when this information is generally available under freedom of information laws. He says that’s because trade secrecy as a doctrine has not reconciled the possibility that there might be a trade secret that the public has an interest in beyond its competitive use. Take for instance the source code of voting machines, which have been claimed as trade secret by vendors, or BP’s Corexit, the dispersant used during the oil spill in the Gulf of Mexico, its makeup kept largely secret because of trade secrecy protection.

Perhaps more troublesome, Levine says, is secrecy in intellectual property laws and the lawmaking process itself. He points to the Anti-Counterfeiting Trade Agreement, an international agreement designed to deal with piracy that has been negotiated in secret simply because it has been designated a national security concern.

“We need to pause a little bit and think very carefully about what we are doing with intellectual property law,” Levine says. “My goal is to force us to answer the question whether we need the levels of secrecy we’re currently seeing in intellectual property law or whether there are other ways to protect the interest of intellectual property holders without impacting the public’s right to know. And that, in particular, is where technology has the most crucial role.”

Aside from rethinking the commercial exemptions to freedom of information laws, he suggests harnessing certain aspects of the business model used by social media, networking and ideation companies to ensure these laws keep the public better informed about government operations.

“If we can merge freedom of information laws with these ideas of social media perhaps we can find a relatively simple way to get greater transparency and get us around the general trend of building higher and higher walls,” he says.

Select Publications:

  • "The People’s Trade Secrets?" Michigan Telecommunications and Technology Law Review (forthcoming 2012).
  •  "Transparency Soup: The ACTA Negotiating Process and 'Black Box' Lawmaking." American University International Law Review, 26  (2011) 811.
  • "The Impact of Trade Secrecy on Public Transparency."The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research. Rochelle C. Dreyfuss and Katherine J. Strandburg, eds. Edward Elgar Publishing (2011).
  • "What Can the Uniform Trade Secrets Act Learn From the Bayh-Dole Act?" Hamline Law Review, 33 (2010) 615.
  •  "Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure."  Florida Law Review, 59 (2007) 163.

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