Yves Faguy speaks with Wissam Aoun of Windsor Law about our IP laws and their fitness for purpose in the digital era.
Yves Faguy speaks with Wissam Aoun about our IP laws and their fitness for purpose in the digital era. Aoun is the Acting Associate Dean at Windsor Law. He’s also an assistant professor focusing his research on patent law, professional regulation and governance. He has previously taught copyright law and trademark law. Aoun is also the new co-editor of the Canadian Bar Review with his Windsor colleague Chris Waters and associate editor Patrice Deslauriers of the Université de Montréal.
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Respondent: Why does a machine need an incentive to invent?
Interviewer: You’re listening to Modern Law, presented by the Canadian Bar Association’s national magazine? Hi, I’m Yves Faguy. In this episode of Modern Law, we discuss what to do about our intellectual property laws. Are they really serving their purpose? Intellectual property law dates way, way back to the age of guilds in medieval Europe. Governments would grant artisans in a particular industry authority and control over what goods could be marketed, what goods could be produced, and the manner in which new inventions and procedures could be followed. But it wasn’t really until later that intellectual property law would become more driven by an interest in fostering creation and innovation. That would really come about in the industrial age. Fast forward to today, with the advent of the never-ending Information Revolution, fundamental shifts in technology and in the economic landscape have some IP experts wondering whether the existing IP rights framework is still fit for purpose.
On the show with me today, my guest is Wissam Aoun, who is the Acting Associate Dean at Windsor Law. He’s also an assistant professor there, where his main area of research is intellectual property with a focus on patent law, as well as professional regulation and governance. And he’s also taught in the past in all areas of IP, so he knows copyright law and trademark law very well. And he’s an important member of the CBA family, I should say, as he’s the new co-editor of the Canadian Bar Review with his Windsor colleague, Chris Waters, and also associated editor of Patrice Deslauriers, Université de Montréal. So, Wissam Aoun, welcome to the show.
Respondent: Thank you so much for having me. I’m delighted and honoured to be here.
Interviewer: OK, so let’s get into it a little bit. I want to start with something – when we were talking beforehand, you mentioned Fritz Machlup, in 1958 – Fritz Machlup is an economist who was commissioned by the United States Senate to review the US patent system. And his conclusion was this, and I’m quoting, “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions.” And then he goes on and says, “If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.”
That, as I understand it, is often the starting point for discussions about whether patents are justified from an economic perspective or not. Now, perhaps we can extend that notion to other forms, like copyright, for example, but we’re talking about patents. How does Machlup’s conclusion stand up today, in your view?
Respondent: The conclusion does still stand up. When you actually look through what Machlup had – some of the statements he had made in that report, he was very careful to qualify a lot of that. And although that paragraph – because Machlup was a – you know, as much as he was an incredibly talented economist, he was a gifted writer as well, and he very eloquently put that paragraph that you just cited, so it’s gotten a lot of quotations over the years. But apart from that, if you actually look at his report, he was very careful to qualify a lot of that statement. And some of the qualifications he made was that at some point in the future we might have more data; right now our data is limited. And if we have more data, maybe we can come to more definite conclusions. Which we do have some additional data today, although, again, the data is somewhat limited as it was in the time of Machlup.
And likewise, he said at some point we might have more different forms of economic analysis that come up, as the field progresses. And he is correct. Economic analysis has progressed quite a bit, especially now with the ability to crunch big data. So I think on many fronts, Machlup’s statement is still valid today. But on the whole, I think the paragraph you just cited is still very valid. It’s very tough to really say one way or the other. And the reason being – and Machlup was very clear about this, and again, I think his conclusion still stands up today – is that the question of whether we need a patent system or not, from an economic perspective, it’s a very indeterminate question. It doesn’t lend itself to easy empirical analysis.
Interviewer: Why not?
Respondent: Well, first of all – and this is very important, it’s often overlooked – the normative rationales for why we even have a patent system, people disagree on that. Right? So until – first of all, until we can actually agree on the rationale for why we have a patent system, we can’t really agree on what sort of methodology we should apply to empirically test whether it’s actually serving that purpose if we don’t even agree on the purpose.
Interviewer: OK, well, so that’s an interesting point, because I always thought that the purpose of intellectual property was to grant some rights and some protections to the creators of intellectual property, but also to foster innovation to some extent. Let’s suppose we were starting from scratch today. What would or what should be the purpose of drafting intellectual property laws, in your view? And, you know, I mean, would they end up looking anything like they have in the better part of the 20th century, let’s say, and the 21st century?
Respondent: You know, that is a – it’s a great question. If you look at the world, what it looked like, when the patent system and the copyright systems were first instituted, it’s a very different-looking world than we have today. When you look at copyright, was created in an era to break up a monopoly over printing presses. And to give some power to the authors themselves when stationers had a very, very strong monopoly over the means of disseminating printed knowledge.
Interviewer: Almost like a guild, I suppose.
Respondent: They were a guild. That’s exactly what they were. And you look at today, well, it’s – you know, for the most part, not entirely, but for the most part, the means of dissemination have really been democratised, especially in the digital era. Now, there’s still some publishing in the academic world and whatnot, there is still a lot of abuse that goes on, but the means of dissemination are not what they were at that time. You know, same with the patent system, we’re talking about a world where industry – what that industry looked like at the start of the Industrial Revolution, compared to what it looks like today. Right? Very different technical environment. So what would it look like today? Well, you know, if you ask me my own opinion, I think it’s very hard – you know, the patent system, let’s look at that, for example. At that time, the patent system was viewed as being technology neutral, right?
If something is novel, if it’s non-obvious, if it meets the criteria of patentability, well, great. It’s patentable, fantastic, you get a patent for it. But nowadays – and when we talk about the analysis since the time of Machlup in the 50s, we have a very, very different technological world, and we have a very different effect of the patent system in those different technologies. For example, the way the patent system is operating in the pharma, pharmaceutical space, is very different than it’s operating in the software space. And I think nowadays it’s very hard to just look at this in a technological neutral sense. And I think that we have to have some sensitivity to the different industries and how the patent system is working in those industries. Right? And that’s something that’s very different than when patent law was first created back in the Industrial Revolution era.
Interviewer: So, I mean, you talk about software, for example, and we can get to health a little later, but you know, how are the principles that underlie our – let’s say our patent and copyright laws? Because copyright touches upon software as well. How are they being tested in our information economy? How is the debate any different than it was 30 years ago with the popularisation of computer and software technology, then?
Respondent: If we look at it from an incentive to create perspective, but if we say, well, look, the purpose of copyright or patent law is to incentivise creation, well, if you look at the software space, a lot of the analyses that exist, whether they’re economic, legal, whatever they may be, a lot of those analyses seem to suggest that there are already built-in incentives in the software industry for creation without any sort of intellectual property protection. The software industry seems to move very quickly on its own, the competitive market seems to do a very good job of incentivising continuous creation and development, and the market changes so rapidly, that that intellectual property protection, you know – for example, if we compare it to pharma, where it could take over ten years before something goes from the laboratory to the marketplace, and then a product maybe two or three years after that, software changes every year. It’s changing so rapidly that – so a lot of the analyses seem to suggest, from what’s out there, that intellectual property may actually be more of a barrier to innovation in the software field than it is an incentive.
Interviewer: So there’s that purpose, which is the – you know, we’re trying to foster some kind of innovation, and we don’t necessarily want our laws to be a barrier to that. But when should knowledge be someone’s exclusive property? And when should it not?
Respondent: Well, you know, that is the million-dollar question, right? When you focus on the should, well, again, we ask ourselves what is our rationale? Why should anybody have exclusion over knowledge? With laws, laws seem to work best when they kind of align with social norms, right? And what society knows or understands about any given area. And then when you talk about intellectual property, you ask yourself, nowadays, there seems to be – because especially over the last 10, 15 years, there’s this really big push towards protection and intellectual property, and innovation and continuous innovation. And society is more and more getting this idea that things should be protectable, everything should be protectable. Now you’re hearing they’re talking about protecting data. And if you look back – we don’t even have to look back to the Industrial Revolution era, if you just look back a few decades, this was actually really a foreign concept.
These things were really exceptions – patents, copyright, they were meant to be exceptions to the free flow of knowledge, right? When you create something in the patent space, when you invent something that is novel and non-obvious, and it’s a contribution to the art, you’ve contributed something, and you get something back for it. But nowadays, when you look at the sort of social – it seems to me oftentimes, because there is so much misunderstanding about intellectual property – because it’s not – you know, votes aren’t given on patent reform or copyright reform. It’s not –nobody’s ever won an election because they’ve said that they’re going to reform trade secret laws. And so these things aren’t really in the social consciousness as much as other areas of the law. So there’s so much misunderstanding. And nowadays, it feels like more and more when we – there’s being – there being so much emphasis on, especially in Canada, on becoming an innovation economy, there’s so much emphasis on that. And rightfully so, it’s a great goal.
But with that, obviously, comes the discussion of intellectual property, and with that comes this idea, and, in my opinion, somewhat mistakenly, that everything should be protected. And that doesn’t necessarily need to be the case. I think, you know, free flow of knowledge is good, it’s good for everybody. It’s good for students when they’re learning, it’s good for competition in the marketplace. So, you know, I – you know, that’s kind of a longwinded way of not really answering your question by saying that – my slant is that – my slant, and where I lean towards, is that I don’t necessarily – I think that there should be a little bit of pushback on the idea that everything needs to be protectable all the time.
Interviewer: Yeah, I mean, and one of the things – and listen, you know, correct me if I’m way off base or even topic here, but we talk about the impact that, for example, artificial intelligence technology, or quantum computing technology might have in the intellectual property sphere. And I know that a lot of discussion among legal thinkers is, you know, can a machine have intellectual property rights. And I believe that the US Copyright Office recently rejected an attempt to copyright artwork made by artificial intelligence. But beyond that actual question itself – and feel free to talk about that, but beyond that actual question itself, the thing about AI is it kind of – it’s being used now to mimic and distinguish between styles, and find the spaces between music, to find, to create original music, or to create original text, even. I’m wondering if we should be concerned that we’re headed towards creating a system where those who can afford these kinds of technologies, quantum computing, AI, can use it to their benefit, but in doing so just end up crowding out everybody else from the space.
Respondent: Well, you know, if you’re looking at it from a crowding out perspective, obviously, the question of intellectual property comes in, right? Because that’s the legal right of exclusivity. And the extent to which intellectual property belongs in the AI space, you know, again I – my personal view is that I don’t see … Let me give you an example. Right? If we’re talking – again, if we’re looking at this from a first principles perspective, let’s look at it from a patent perspective. If patents are meant to incentivise innovation, incentivise people to go out there and invent, right? Well, apart from the question of whether a machine is actually an inventor, if it’s actually inventing anything – which is a fantastic philosophical question, and recently a legal question as well. But apart from that question, whether or not we can actually consider a machine an inventor, why does a machine need an incentive to invent? If the machine is just inventing on its own – and however you might define inventing – why does it need an incentive?
Machines don’t need incentives, humans – you know, if you believe economic theory, humans are the ones who need incentives. Right? So why does a machine need an incentive? Why do we even have to have a discussion about patents in this space? Apart from an interesting philosophical discussion of whether a computer is actually inventing or not. Why is it? Why do we even have to consider this? It seems, if we’re looking at it from a first principles perspective, from that, in that lens, an incentive perspective, then why does a computer need incentives? Why are we even thinking that we need to give computers patents, or the person who first turned the computer on and wound it up to start pumping out the invention?
Interviewer: So here’s a question, because there’s at least a sense in the music industry, for example, that there are areas where copyright is just failing everyone, and we’re seeing this with all these lawsuits hitting up artists for infringement and all that. But, you know, I think what’s happening is that some of these technologies are facilitating, in some ways, the creation and distribution of artistic works of art, right? And in a completely different area, we see this with non-fungible tokens. But just let’s stick to the music industry for a little bit. So let’s say you are, you know, you’re a very successful artist with the means, and you are using artificial intelligence technology to create music. I guess, presumably, you’re going to be credited with authorship over that, even if you are using machine technology to assist you. And I just wonder whether suddenly we are not creating a world in which machines are aiding a select few people with the means to get credit for their intellectual property. And I’m wondering if that’s a social concern that we need to be thinking about.
Respondent: Well, if a person using a computer, whether we label it as an AI, or whatever that might mean, well, people use computers right now to invent, to create music or whatever else. So the fact that it’s AI, again, it doesn’t detract so much from the fundamental first principles of what we’re looking at here. Did an individual create something that they need the incentive? Is society better off because of that incentive? Are we getting more innovation? However, one defines more, again, something Machlup, in his own analysis in the 50s, pointed out, right? What is more innovation? What is better innovation? But those are really the questions we should be asking, those first principle questions, and they get lost in the mix sometimes. You know, one thing I will mention on that – and this is to sort of jump backwards a little bit when you talk about what things, what intellectual property laws might look like today, compared to how they looked like back in the era of the first industrial revolution.
And this question of new technological development, and wanting to quickly jump to the conclusion that new technology needs better protection and new forms of IP. Well, you know, in the late 80s and early 90s, the EU – at this time, there was this radical new technology called the internet, and these things called websites at that time, right? And that – exactly, right? At that time, this was – now we look at this like it’s [unintelligible 00:19:32]. At that time this was a new, big thing. It was a big development, and the EU pushed very hard to create this sort of new – new in the sense that IP previously had never envisioned it – protection for what they called databases, right? Because now we have websites where data is sort of accumulated and shared, and a lot of this stuff historically was not protected by IP. Because this stuff was not inventions and, you know, accumulation of data in and of itself is not copyright protectable. But there’s this new technology that’s coming out, and we need to somehow expand the umbrella. Right?
So the EU passed a directive to protect databases, and by all accounts, from the studies I’ve seen, at least, it was just a disaster, right? You look at the development of new sort of IT technology online in terms of website development, and new online databases, and jurisdictions that did not pass similar legislation, developed economically in those areas far faster than the EU did. And the legislation was just – not only did it hold back economic development, it was just very, very difficult to apply. And now – so, you know, beginning late last year, there’s a review going on as to whether or not this legislation should be scrapped altogether. So I think it’s a lesson that every time new technology that has a potentially democratising effect, like the internet, every time this stuff comes out, we have to ask ourselves, do we really need to rush to try to somehow expand the IP umbrella in some way? Do we need coverage for everything?
Interviewer: It also illustrates the power of our globalised economy in sort of shaping the intellectual property, legal framework environment, I guess, worldwide, because we can’t operate jurisdictionally in a silo, can we? We have trade agreements, and IP is a big part of that. Tell me a little bit about that, and how our trade environment influences us on IP.
Respondent: Well, this isn’t entirely new, because it was really in the mid-90s that intellectual property became a trade issue, with the passage of the Trade-Related Aspects of Intellectual Property treaty, which falls under the WTO umbrella. And now, anybody who wants into the WTO trading regime needs to sign on to this intellectual property treaty, which is extremely comprehensive. And really nowadays, if you look around the world, there are few jurisdictions in the world that don’t have a patent office, that don’t have copyright legislation that looks a lot like what you would see, for example, in the United States or in the EU. And returning to Machlup the way we started, when I say that, it’s still as [poignant? 00:22:54] now as it was then. One of the points that he mentions is that my analysis is a US focused analysis, and I am not necessarily saying that this is the case for the rest of the world.
Because – and he realised that, and the truth is that, nowadays, it’s very hard to experiment in this space. And if you look back at the Industrial Revolution era, at that time, there were a lot of countries, and the US being the number one, at the time of the US revolution, where there’s some historical analysis that seem to suggest that a lot of the US’s rapid development when breaking off from the UK was because of the fact that there was a lot of copyright borrowing, we’ll say [laughs]. Textbooks, blueprints, stuff that would have been protected by copyright, that the US quickly learned from and adopted, and was able to leverage to rapidly advance. So when you when you hear –
Interviewer: Are you saying that the Americans were pirates?
Respondent: [Laughs] I was very careful to be nuanced in my language, but, you know, one person’s pirate is another person’s – you know, but yeah, – but yeah, no, and that’s the reality. That’s the truth, historical, you know, if you look at it historically, that’s what happened. And nowadays, when you talk about it from a development agenda perspective, you don’t see that, because intellectual property has blanketed the world through trade agreements.
Interviewer: Is this helping other countries and emerging economies? I mean, obviously, we’ve seen China succeed at entering the international community through the World Trade Organization, in spite of all the tensions that are going on today. How is this playing out elsewhere?
Respondent: You know, around the world, again, you look at it nowadays, a lot of the analysis seem to be segmented through industries. And if you look at it, for example, in the pharma industry, you know, the whole question of access to medicines comes up. And now this is more pertinent than ever with COVID. Right? There’s this New York Times editorial about the patent system. When in history have you ever seen that? It’s not – it’s never really happened. But that, I think, in my opinion, is largely the result of the fact that with COVID becoming such a global thing, and now this question of access to medicine and patents has become something that is important for everybody, not just these very small industries, lobby groups and whatever. And that’s why you see that sort of editorial coming out and whatnot. And what this, I hope, will do is bring to the forefront this question of access to medicine.
Because when you talk about development, well, you know, most of the analysis is in the pharm – analyses in the pharma space, seem to suggest that IP was not the deal that a lot of the developing nations of the world thought they were going to get when they signed on to the TRIPS agreement when becoming members of the WTO. The medicine prices have become very expensive, there’s very little access to medicines, and then you have the promises that, oh, don’t worry, as soon as you have a patent office, and you have patent legislation, all of a sudden, you know, everything, all this flourishing, turn the tap and it’s all going to come. Innovation and access is all just going to come through. It was a promise that was never fulfilled in the developing world when it comes to access to medicines.
And that’s something I think that with the whole COVID crisis, and this question of access to medicine, and this becoming front page news, literally, is something that people are starting to ask questions about. I, for all these years in the patent space, I would jump at any opportunity for anybody to ask me a question on that. It came up so few and far between. And now, I have my parents asking me about patents on COVID vaccines and stuff like that. And I’m happy to see that it’s becoming front page news, because people are starting to ask this question, not just here, but around the world. Right? And this was front page news, the questions about why are COVID vaccines not being made available to the developing world.
Interviewer: And my understanding is there are no jurisdictions, per se, or countries out there, per se, that are necessarily trying to chart their own course and set a different course on reforming, in any dramatic way, intellectual property law. But, you know, are there some main figures out there who are calling for reform, and what are they saying? And are they getting any traction in any way?
Respondent: Well, you know, it’s – this is – to bring back the China issue that we sort of put on the backburner there, and also India, which you brought up, for a long time China and India were in the crosshairs of the big industrial nations like the US, predominantly. And for a long time – the example, like I brought up earlier, with China saying, well, you know, what the US developed so quickly when there was no copyright law, and why are we being hamstrung into this now, and it’s not fair and it’s not equitable. Or, like you say, India that has a very robust generic pharmaceutical space, saying, well, look, we don’t we don’t want to play this game, it’s not fair. But really, what you’re seeing now is it hasn’t been trying to push back, and instead these countries have jumped in.
China the most, the biggest example of it, just jumping right in and saying, OK, well, fine, you’re telling us that we have to play this game, we’re going to play it to win. And you look at the statistics now, and the numbers, China leading in patent filings, and certain – and if we look at the sector, sectorially, in the IT space, China is just completely blanketing the 6G and these new sort of internet spaces with patents, and these Chinese companies are becoming leaders on the strength of their patent portfolios. So it’s not so much that these countries are trying to change the rules, but they’ve jumped in and are playing the rules in a way that nobody would have expected it even as like ten years ago.
Interviewer: So I guess what I gather from that is that it’s hard to imagine a future where the existing framework, as we sort of know it, is going to be altered by any great degree, because it seems to be the foundation of the rules of the game today, in our globalised economy.
Respondent: Yeah, I think you’re precisely correct. To me, anyway, in my opinion, it’s getting to the point now, especially with a country like China, for so long, trying to push back on this, and then eventually just, you know – not to sound dramatic, but giving up and saying, OK, fine, we’re not going to get any change here, but we’re just going to learn to play this game, and now we’re starting to play it better than you. It’s very hard when now you have these two, the US and China – and not just the US and China, obviously, Europe and all of these jurisdictions – playing the game. It’s hard to envision who would be – who would – or who or what would be the impetus to try to change the rules of the game. You know, it’s hard to envision it. I myself, I can’t envision how major reform might come about at this point in time. I … It’s just – it’s a very difficult question.
Interviewer: And obviously, to bring it back home a little bit, Canada is no exception to being pressured by some of these larger economies. We not so long ago renewed our free trade agreement with the United States, the USMCA, and Mexico. And as a result, now the Canadian government has plans to extend the term of copyright. So the international standard of life of the author plus 50 years is still the international standard, I’m guessing. But it’s 50 years, but now we’re moving into 70 years. How do you view that policy and that effort on our part?
Respondent: Well, you know, this is – this goes back to the question or the topic we touched on earlier about intellectual property becoming a trade issue, right? This is, like you say, a country like Canada that has a certain trade agenda and has certain trade priorities, unfortunately, continues to compromise on this, because a jurisdiction like Canada has other priorities they want to push. And this is what happens, right? Intellectual property, we just say, well, we’ll just – the US is pushing for it, so we’ll take it, right? Now, if you ask me what do I think of this, well, let me ask you, what do you – if we’re looking at this from an incentive perspective, again, if we’re going back to first principles, how does granting copyright a term of protection to an author’s life and another 70 years after it, how does that incentivise more creation? How does giving a person’s estate for seven years after they’re gone the right to continue suing infringers?
And you talk about music, and how many of these cases you see in the US are often brought by a person’s estate after they’re gone, you know, it’s just mind boggling. And the truth is, it’s – like I say, it’s not something that elicits a lot of anger on the general public’s part. Nobody wins an election on this. So you have special interest groups like Disney, who’s been notorious for copyright extension; every time Mickey Mouse was about to fall into the public domain, Disney makes a strong push, and uh-oh, we’re going to add another 20 years. Right? And that’s – and – but if you ask me, what reason is there for continuing to extend copyright protection that long, I just cannot see any good economic, political, moral, any justification for that sort of length of protection. I just – I cannot see it. But –
Interviewer: We’re returning to the guild basically. [Laughs]
Respondent: Exactly. That’s exactly right. We’re going back in time, we’re circling back. That’s exactly what it is. I just don’t know how that somehow incentivises creation that wouldn’t otherwise have existed without it. Right?
Interviewer: I suppose that, you know, it was perhaps the federal government that was incentivised to agree to that extension. [Laughs]. However, I think some of the criticisms it’s receiving – I mean, Michael Geist has written a lot about this – is we’re doing this without introducing other mitigation measures that would perhaps – for example, I think people have suggested that we need a registration system that would help reduce the number of orphan works by putting the onus on creators to protect their works, judging that they have value and that it’s worth going out to seek the extra 20 years. Have you any thoughts of that, on that, and why we don’t seem to be pursuing that as a policy?
Respondent: Well, you know, I think those things might help to some extent, and I think Professor Geist obviously is correct in that and … But you know, I can’t help but bring it back to the real – really the question is why does copyright term need to be that long? And it doesn’t. I mean, I’d be happy to be proven wrong on this if somebody has it, but I’ve never seen any sort of justification for that. And really, it’s just special interest groups. That’s all it is. And when you say, well, why, why are we not introducing all of these other measures – because in a jurisdiction like Canada, this just doesn’t elicit the same political response that it does in the US. Sadly, that’s the answer. That’s the long and the short of it. It just doesn’t.
So, you know, is any – is the government of the day going to be voted out because they didn’t introduce a copyright registration system? Probably not. Right? And do we have enough special interest industries in Canada that are going to push for it? Probably not. Right? And that’s what it is. And it’s just, you know, and it’s just – as these things become more and more a trade issue – because now that’s not even – like you say, this is a Canada-US treaty, this isn’t a World Trade Organization. And what we’ve seen in the last decade is that the US is pushing the IP agenda in individual treaties with individual countries more so than they used to at the WTO level; we’re probably just going to see more of this. That’s just the reality.
Interviewer: How do you see things playing out, looking ahead? A few decades ahead. What are the biggest questions on your mind?
Respondent: I like the fact that these things are – at least in the patent space, what we’re seeing with COVID, if there’s one good thing that may have come out of COVID, is that this is becoming front page news. The New York Times editorial seems to be getting a lot of circulation outside of just the sort of, you know, the dorky IP people like myself, right? Now the public is actually like, hey, what’s going on here? And that’s a good thing, right? This is – this can’t just be a space where special interest groups operate. And that’s how it’s been for the last 50 years. So I would love to see this continue to become a more public discussion, especially in the patent space, I think, because patents are – they’ve all – there’s – for many, many reasons, patents are shrouded in a little bit of mystery when it comes to the public. There’s a lot of misconception and misunderstanding about how patents work, generally, and then how patents tie into specific industries, like we say, like IT, like pharma. Right?
And I would love to see, going forward, more public discussion. I think that the public should have input on this, and the public should be knowledgeable about it. And I think these things should become, if not the top – because I don’t know if they ever will, but maybe not the top political priority but a political priority that we’re seeing discussion on. So that’s what I hope. I think COVID was good in the patent space for bringing that front and center. How much that momentum will remain, now that we’re all exiting COVID, to some extent, remains to be seen. I think on the copyright side of things, with things, like you say, AI, NFTs now, stuff like that, people are asking questions. Like wait a second, is this is this protectable? Should it be protectable? How so? Why? So I also think to some extent these copyright questions are going to become front and center, are going to continue to become front and center as we get more things like AI and NFTs, as these as these technologies continue to develop.
Interviewer: What about the courts? Obviously the courts play a role in evolving jurisprudence. Do we need to think about the role the courts play? Does it …? You know, if I recall, the opinion piece, which you’re referring to, in the New York Times is talking about how, you know, a lot of the patent judges come from the same bar, perhaps have – share a similar worldview. Do we need to bring a little bit more diversity of thought into this? Are there any thoughts on that?
Respondent: Well, you know, it’s funny you mention that, because a lot of my own research is specifically on that question right there. Right? The kind of tunnel vision in the patent system. Because you are right – and I think that’s – I was happy to see that highlighted in that piece, because that is the reality. If you go back to some of the – if you look at the US, for example, some of the major reforms in patent legislation, this was essentially just patent lawyers talking to patent judges, who were talking to politicians, who were just saying, well, I don’t know anything about this, I’ll just – these people know what they’re talking about, so I’ll just do what they tell me to do. Right? And then it’s not necessarily that they weren’t – that these politicians weren’t well intentioned or well meaning, but this stuff is a mystery to a lot of people. So they’re like, well, I’ll just listen to the experts, and the experts are telling me this. And it’s a very insular community; you have patent lawyers talk to patent examiners, who talk to patent judges. And these people are just this little circle who just talk to themselves.
And I don’t necessarily believe that – it’s always an issue. As you say, it’s very much this kind of people talking to each other, echo chamber type thing. And it’s not that people aren’t well intended or well intentioned, but when you have an echo chamber, that’s what happens, right? You just have a conformity in thought, right? You have a homogeneity of thought across the board, and you don’t get a lot of that creative thinking. And I – there have been efforts over the last little while to try to get new, fresh thinking in this space. You know, the European Patent Office had created this sort of public consultation board about a decade ago. And the USPTO has really tried – the United States Patent and Trademark Office has tried to reinvigorate theirs over the last few years.
Yeah, myself, looking at these, it’s very questionable how much impact these are having, because again, who sits on these boards and how they’re selected is – yeah, it’s very much still that insularity is still there. So, you know, it’s – I think the insularity really, really is a problem. And I’m very careful with my words, and I do choose the word problem deliberately, because I don’t think any public system that has as much impact on the public, like the patent system, or like the copyright system, should be that insular. And that’s why I – you know, if there’s one theme that I continue to return to throughout this talk, anything that helps make this a public – an issue of public discussion, and really gets the public involved in any way, shape, or form, I think is a good thing.
Interviewer: I’m wondering if you would have any reading on the topic to recommend to people. Any ideas?
Respondent: Yeah, I think, you know, as you mentioned earlier, Professor Michael Geist, he obviously blogs on these topics a lot, more so from the copyright and IT space. I think Professor Geist does a fantastic job of really trying to keep the public generally interested and involved in these discussions, and especially over the last 20 years he’s been absolutely phenomenal at really keeping that in there. And his discussions are always – you know, he’s got a lot of clarity in the way he delivers the topics, and I just think he’s obviously a great resource for Canadians. Obviously – and I’m biased in this – Professor David Vaver, who I’ve done my PhD research under for many years, he has been somebody who has spoken on this issue, and has often mentioned and suggested ways that the public can be more involved in IP decision making. So anything by Professor Vaver on the topic is always very good.
One book that I’ve really enjoyed recently, with respect to the patent system, is a book called “Patent Politics”, by Professor Shobita Parthasarathy. She is at University of Michigan, and she – the book, I believe, was published in 2018, so it’s just a few years old. But I think it is just a fantastic book that really tells a great story of the insularity of the patent system, right? And on all levels, whether it’s the governmental legislative level, and how politicians make the decisions, to courts, to the patent office. And she just does a fantastic job of telling the story, and it’s just a really great book. So anybody who would be interested in learning a little bit about that would be really – would great – it would be great to read that book. And one last book that I would say, too, is a few years ago there was that – actually, it’s more than a few years now, from ten years ago, there was the big United States Supreme Court decision on the patent for the BRCA, the breast cancer identification gene, that had made international headlines.
And Professor Jorge Contreras recently wrote a book about the entire lawsuit, the history of it, the economics of cancer screening technologies and gene editing, and whatnot. And the book is called “The Genome Defense”, which, again, I think is a great book from a storytelling perspective, that really just gives you this inside view of everything about the background, the science, the impact on health, and access to this diagnostic technology, the lawsuit and the lawyers, and the judges involved. So it really gives you – it’s a great story. It tells a fantastic story.
Interviewer: Yeah, we barely got into – we didn’t even touch on the genome. Anyway, listen, unfortunately that’s – our time is up now, but Wissam Aoun, I want to thank you so much for joining us today.
Respondent: Thank you for having me. Honestly, this was a delight, I’m honored. Thank you so much.
Interviewer: We hope you enjoyed this episode of Modern Law, one of our CBA podcasts. You can hear this podcast and others on our main CBA channel on Spotify, Apple Podcast, Google Podcast and Stitcher. Subscribe to receive notifications for new episodes, and to hear some French, listen to Droit Moderne. If you enjoyed this episode, please share with your friends and colleagues. And if you have any comments, feedback and suggestions, feel free to reach out to us on Twitter, @CBAnatmag, and on Facebook. And check out, of course, our coverage of legal affairs at nationalmagazine.ca. Also, I’d be remiss if I didn’t give a big, big welcome and extend a big thankyou to our new podcast editor, John McGill, for his help in making us sound great. We’ll catch you next month.
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