IPR in Dead End. Column

(IPRinfo Special Issue, September 2006)
Jukka Kemppinen

In Intellectual Property Law there are serious conceptual difficulties. This is not news. The linear development of copyright, patents and those other branches had been going on for 130 years, until the new digital environment started to heap difficulties on us ten years ago, possibly because of the advent of the Internet. No-one really knows what will happen next and what is actually happening now. Possibly this is the ”epistemic rupture” often preached by the French structuralists. We may speak, instead, of non-linear development.

We cannot avoid the concept ”information” in law, although we know that it is the reason of so many misunderstandings. Copyright, patents and trade-marks are something about information, processing information and using preprogrammed information. This term is not helpful. Life on the planet is also processing and storing information, genetic information coded in DNA.

Sometimes information means ”decision” on accepting or discarding proteins, sometimes it refers to books or songs, sometimes bit-streams or other signals, as in the mathematical theory of information. We might suspect that system theory, which has very much to do with decision making and risks, gives us one clue: information in a closed system may be very different from information in open systems, not to mention complex-systems, such as organisms.

European legislation on data-bases is a criminally insane way of mixing ”information” and processing (programming) information. Somebody may have a sole right to use so-called instances in a data-base (information), given that those instances are arranged (processed) in a certain way.

The laws demand ”investment” in structural arranging information for a data-base. This means, ultimately, energy, although the law has coined this metaphor using economic investment as a model – ”investing human, technological and economic resources”…”qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or reutilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database”.

Money buys skill.
There is no information without energy, as the well-known example and refutation of ”Maxwell’s demon” exemplifies.
It is common that IPR legislation is used as a means of protecting information. This is logically impossible. It is exactly as owning or stealing energy. It is possible to own means of creating energy or equipment for transmitting and storing it. The same is true of information, the counterpart of energy.

Creating wealth was the main topic of authors from Adam Smith to Marx and Lenin. The problem of creating and claiming exclusive right to information is still almost virgin soil.

We claim ad hoc that exclusive rights to information as such is absurd and that it is actually being done. There is something resembling the opening of American frontiers – a mad rush to stake information. This will cause major difficulties.

The solution has been shown by the Japanese. We must change legal thinking and stop analyzing various forms of IP and various prohibitions against disseminating e.g. insider information or information pertaining natural security. Instead we need a vast and necessarily complicated program of protecting instances (or platforms) of information in certain cases. This means letting go the concepts ”work”, ”invention” and their likes.

To achieve this, we must deepen our understanding of the economic, societal and cultural behavior of information.
This might be the Herculenean task of the young generation.

Professor Jukka Kemppinen works at present in the University of Lappeenranta (Information Law) and as a principal scientist at HIIT. In addition to his extensive career in legal profession he is also a well-known poet, translator and author.