Does the Public Understand Intellectual Property Law? Do Lawyers?
12 Pages Posted: 17 May 2006
Date Written: May 16, 2006
I was given a speaker's dream brief: to talk about whatever I wanted so long as it had something to do with the theme of the conference - intellectual property ("IP"). A few suggestions were made in a nice, non-authoritarian way. These could, of course, have been treated the way IP lawyers usually proceed, i.e., by entirely ignoring them. That is called purposive construction, and Canadian and British courts do it all the time. So a British court has read a patent claim to say that "vertical" can also mean "leaning", a decision that comforted builders everywhere. Not to be outdone, a Canadian court last year decided, in construing a claim, that "wet" could also mean "dry". Inhabitants of the Sahara might be surprised; so might those from Vancouver or San Francisco.
My subject will nonetheless be the IP system. I say the system is out of touch with both business and ordinary public sentiment, and that major rethinking and overhaul are necessary if it is to come into line. So nothing new there. But I shall not discuss particular rules as such. Instead I want to make a more basic point that lawyers tend to ignore.
We test much of our legal system and rules by asking whether they fulfill people's legitimate or reasonable expectations. How does that apply to the IP system? How does it apply, in particular, to these questions: (1) Can reasonable folk understand the system? (2) Does the way the rules are expressed make sense to them?
As my standard of the reasonable person, I shall vary (as suits) between the reasonable lawyer in her Bay Street office, the reasonable reader whose conduct the law is intending to regulate, and the reasonable judge sitting in his or her courtroom.
These two questions - can reasonable people understand the IP system? does the way its rules are expressed make sense to them? - are important. For if the answer to either is no, the system is not doing its job well and risks losing its moral force. Not only will it not be observed, but it may also not deserve to be observed.
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