Issue 2004 (1)
Editorial: Codes and Global Commons in JILT
By Professor Abdul Paliwala
Welcome to this Issue of JILT. A historical underlying question in the development of information technology law has been the extent to which the radically different nature of ICT requires equally different approaches from the law or is it a question of mere adaptation. Lessig has endowed this issue with political-economic significance through his concepts of the 'Code' as Law and the enclosure of the global commons in information. He has warned that a lack of appreciation of the underlying principles of the innovative 'Code' underpinning the ICT revolution will undermine the revolution . In this respect, both expansion of the scope of property rights to cover new forms of information property and the granting of excessive freedom from regulation can be undermining influences.
The working out of the Microsoft dispute might be seen by many as being precisely about the attempt to capture property rights in a way which undermines the basic principles of the revolution. However, in their article 'Proceed with Caution: The Application of Antitrust to Innovation-Intensive Markets' Goldman, Corley and Piaskoski suggest that undue tampering with property rights in the interest of competition might kill the golden goose of innovation. They ask:
Is it acceptable from an antitrust perspective to hinder the creation of a widely-accepted technological standard (and a therefore dominant market position for the company creating the standard) if consumers and society as a whole will benefit from the ongoing innovation and wide use of the standard? Should the protection of consumers from the static effects of short-term price increases trump the long-term effects of dynamic gains arising from innovation?
The answers are not straightforward and continue to be discussed and reviewed by antitrust authorities around the world.
Kohlbach's article on 'Making Sense of Electronic Money' has a similar message of non-interference with the market. He draws on the example of the UK's Financial Services Authority decision to classify PayPal (Europe) Ltd as an electronic money issuer to underline the complexity and impracticability of the European regulatory approach as contrasted with light tiller approaches in the US and Canada.
It is obvious that both readers and authors will have differing views on these debates about regulation. Thus, Zekos asks questions about adaptation or transformation of the law. In his article on 'Patenting Biotechnology', he feels that the provision by US courts of property protection to life forms was a mistake:
US Courts interpreting the 1952 Patent Act seized upon a simplistic reading of sections 101, 102, and 103, and in this manner overturned the long established prohibition on patenting naturally occurring phenomena in purified, concentrated, diluted, or otherwise insubstantially altered form. Patents should be synonymous with inventions and applicants must have created the claimed subject matter through an ingenious mental step. In order for a substance based upon a naturally occurring phenomenon to comprise an invention that substance must be significantly transformed from the state in which it naturally occurs and so the biological function of the chemical or tissue at issue must be different from its function in nature.
Schiavetta's article on 'The Relationship Between e-ADR and Article 6 of the European Convention of Human Rights' examines the extent to which growing systems of electronic Alternative Dispute Resolution should comply with the procedural requirements of Article 6 of the ECHR. She concurs with the finding of the European Court of Human Rights that 'the state must seek to ensure that the alternative system meets the procedural obligations of Article 6 or be subject to the review of a body that does'. Otherwise the essence of the Convention would be lost.
Subajit Basu in his article 'To tax or not to tax? That is the question? Overview of Options in Consumption Taxation of E-Commerce' considers that existing legal structures and regimes of taxation cannot work in the context of the taxation of ecommerce and thinking 'out of the box' is required to work towards long term solutions to an otherwise difficult problem.
Poulin's article is different in being not about substantive law but the provision of free legal information by the Canadian Legal Information Institute (CanLII). And yet, the issues are no different. Information has become the most significant commodity in the information revolution. Governments and international organisations may not have quite realized are just beginning to realise that the acquisition of excessive property rights in information can fundamentally affect the democratic balance in society and exacerbate growing digital divides. In this context, the provision of free information is a most important aim and one which CanLII, a leading member of the free law movement, has made a vital contribution.
As usual, we hope you enjoy this latest edition and we look forward to receiving your valuable contributions to the journal in due course. Please send your articles to Brent Hanks.
Professor Paliwala teaches in the Faculty of Law at the University of Warwick.
He can be reached at: <A.Paliwala@warwick.ac.uk>.
This is an Editorial published on 15 December 2003.
Citation: Editorial 2003 (2). The Journal of Information, Law and Technology (JILT).
<http://elj.warwick.ac.uk/jilt/03-2/editorial.html>. New citation as at 15/06/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/editorial/>.