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Why Will Intellectual Property Change-The Staying Power of Immaterial Assets and Malfunctioning of Analog Institutions

Why Will Intellectual Property Change-The Staying Power of Immaterial Assets and Malfunctioning of Analog Institutions

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Published by Mladen Vukmir
A summary of the Abundance of Sources Article prepared for the RIThink Online Multidisciplinary tools: http://www.rithink.hr/?act=archives
A summary of the Abundance of Sources Article prepared for the RIThink Online Multidisciplinary tools: http://www.rithink.hr/?act=archives

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Published by: Mladen Vukmir on May 31, 2012
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RIThink, 2012, Vol. 125
 RIThink Vol. 1 2012
Why will intellectual propertychange: the staying power ofimmaterial assets andmalfunctioning of analoginstitutions
Vukmir & Associates, Grama
a 2L, 10000 Zagreb
 In modern societies the role of law is changing upon accelerated modifications of quantum, structure and information processing possibilities of knowledge. The functions of copyright law and industrial property law are also experiencing historical challenges, and the changes with which it responds are especially due to digitalization of reality and global networking of previously disparate knowledge quanta. The objective of this write-up is to make accessible the conclusionsof a much larger work that attempts delineate the constants and discontinuities in the legal protection of creativitythrough semiotic analysis of legal language by confronting them to the colloquially used concepts throughout the historyhttp://www.scribd.com/doc/62077636/Abundance-of-Sources ). That article explores principally those terms used throughout the past to designate different types of copies and originals and comparison between art history and legal language. Analysis of historical aspects leads also to conclusions on possible trends in copyright law and its role indigitalized societies. In short, these conclusions suggest an uninterrupted but shifted position of the role of copyright lawand, at the same time, the appearance of a variety of parallel and simultaneous forms of copyright protection and increased role of automatized technology based protection of usage monitoring and royalties collection. Finally, thoseconclusions lead to an unexpected and inescapable overarching conclusion that the role of law itself will shift in the future societies.
The past decade saw increased controversyover the role of intellectual property incontemporary societies. On one side, it wasconsidered that immaterial assets were aguarantee of social progress. On the other side,social currents appeared to be increasingly atodds with those views, asserting that IP rightsmight be a barrier to creating immaterial assets. At base, our view is that these controversies
26RIThink, 2012, Vol. 1
2012 | RIThink Vol.1
confirm that, after being present in modernsocieties for over two hundred years in itspresent form, IP is increasingly viewed as a factof civilization. Having gradually assumed therole of an underlying element for creating wealthin modern societies and complementingtraditional property, it is now being diversified tosuit new forms of creativity, which emerge fromthe digitalized and networked context. Thisemerging new role of immaterial asset usageand management is the subject of debates andpolemics.The current polemical tone of discussion over IPrights is, in our opinion, a direct consequence of the increased real presence of those rights inmodern societies. Perhaps more than ever before, IP debate admits of no easy socialconsensus. This, in our opinion, is not a result of the fact that IP is more controversial than inother phase of its history, but simply aconsequence of the convergence of twomoments:1. IP now stands for the first time at thethreshold of general social perception,where the emergence of these rights isnoticed by the major part of the socialcommunity. Current suspicion as to thepossibility of achieving social wealth throughuse of intangible goods contributes toskepticism towards the importance of protecting those rights. This distrust seemsmore pronounced in societies with a lower average education level and in transitionsocieties that have not yet achieved post-industrial production levels and lackknowledge and service skill values.Meanwhile, in post-industrial societies thereis a need for reexamination of the principlesof IP law for other reasons, principally theappearance of driving new business models.2. Post-industrial societies attain high level otheir social wealth through knowledge,creativity and management of immaterialvalues by means of intellectual propertyrights. As use of intellectual property rightsis still based on industrial society models inthe new contexts of social and increasinglyof material reality digitalization andnetworking, the old models show asinadequate and are confronted with manysocial criticisms. Reform of existing businessand IPR exploitation models resultsinevitable, whereupon reform of legal IPdoctrines appear absolutely unavoidable –perhaps for the first time more radically after its first two or three centuries.We have no doubt that IP law is inevitable tosupport established models of exploitation of human knowledge-based creativity results andthat present controversies will not lead to theabandonment of IP rights. In fact, given that our civilization is actually increasingly orientedtoward the use of intangible goods resultingfrom the use of knowledge, intuition andcreativity, we might expect that IP in some formwill enhance its role in future societies. Webelieve there is a chance for this not to happenthrough growth of legal protection of immaterialproperty. This absence of law in the leading rolewill come as a consequence of general changeof the role of law in modern societies.In our view it is likely that the future role of lawmight lead towards a more specialized role inthose societies than it has had in ours for a longtime. We foresee that, as the role of law will bechanging and undergoing relativemarginalization, the role of technical protectionmeans will increase in the field of immaterialasset protection. Eventually, new ethical andbehavioral values will, in our opinion, beestablished and affirmed by society and becomedominant in respect of legal regulations. Thechanges we face are unprecedented; we mustestablish for ourselves the behavioral models tofollow without relying too much on existingmodels. The task is not easy but, as there willbe no other choice, we propose to get down towork right now. This summary of my full text isonly a minor contribution in that direction.Given the force and inevitability of the processesdescribed above, when seeking to predict thefuture of social decision-making processesimpending in relation to IP rights we must clearlyanalyze those constants that appear as regularlyaccompanying IP rights throughout its history. Indoing so, it was my approach to research andconclude that civilization's IPR inheritance is anessential reflection of the needs of moderncreativity-based societies. Our societies will notdeny the fact that, in the achievements of civilization, the results of creativity are regardedas suitable for economic exploitation and for protection by IP rights. I have shown in my earlywriting that the signs of these needs can betraced back to long before the introduction of defined IP law into the legal system. We havelearned to recognize that property over theresults of intangible human creativity will notdisappear in conditions of a digitally networkedenvironment and upon a migration of reality intothe digital sphere. In other words, paraphrasingthe title of my article, we are certain that humancreativity, including the development of newforms of creation, exploitation and protection of intellectual property rights protected works will inthe future to an even greater extent represent aSOURCE OF ABUNDANCE for future societies.In order to predict future development of IPprotection systems we must bear in mind acharacteristic, which human communitiesdemonstrate in a variety of contexts, whether historical or technological. Researchers oftendescribe the so-called layering concept as theproperty of simultaneous mutual separation andinseparability of various ideas from differenthistorical periods. We believe that any predictionmust take into consideration this characteristicof historical development. In practice, thismeans that, once a model is created, it maychange its social role but it will hardly becompletely abandoned or forgotten. Existingprotection system will undoubtedly remain anoption and will constitute the primary element of choice between protection alternatives at theauthor's disposal. Along with a wider change of the role of the legal system in future societies,other two elements will constitute thecornerstone of its future relation towards theimmaterial results of creativity. One will be itstechnological character, which in the context of digitalization and networking, means that we willuse computer code-based technologies aselements of intangible assets management. Theother is the element upon the creation of whichour generation has embarked, of increasedresponsibility and decision-making based onclearer ethical principles that we anticipate as aresult of ongoing changes marking our societies.In showing the depth of the pressures mountingin modern societies, initially the text raises somequestions on the roles of law and questions theconcept of sovereignty. In the integrated world,sovereignty is visibly ebbing and becoming ever less meaningful or useful, thus exerting strongpressure on one of the cornerstones of international relations. In addition, modernsocieties are increasingly showingdissatisfaction with the traditional pillars of democracy, such as political class andlegislatures as intermediaries in deciding socialchange. The text in its central part pursuesseveral terminological groups and combiningsemiotic analysis with a comparison of themeaning of selected specialized terms incopyright, art and colloquial language, drawingconclusions on the social notion of creativityprotection system. Questions are raised as tothe historical adequacy of certain inheritedsolutions, in particular the maintenance of thepast notion of the role of copying upon thechanges occurring under the strain of digitalization and networking. A strong upsurge in creativity, copying and useof works of art resulting from the introduction of digital technologies and computer networkinghas lead to uncontrolled and uncontrollableincrease of unauthorized copying. Societiesmust face the fact that, in future, authors willprefer to choose for themselves among verydifferent forms of protection of their works of art,it being desirable for them to have variousregimes of protection at their disposal, to protectvarious modalities of use of their different works.Thus where authors settle for a regime of charging for and controlling the use of their works in the globalized digital economy, itseems unlikely that law is to maintain theprimary role of the copyright protection system.The text finally delineates briefly the trends andconsequences of technical protection systemsdevelopment, which along with current trends ona broader IP front, already give rise to themarginalization of the role of law. In other words,although law will remain the structure regulatinga specific level of social behavior it will be

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