Introduction

Summary

It seems, yet again, that intellectual property law is at a crisis point. Besieged by the creations and practices of the digital revolution, unsettled by the ethical dilemmas thrown up by the patenting of genetically modified plants and animals, and about to be caught out by organic computing, it seems, at least in the eyes of some, that contemporary intellectual property law faces a number of challenges that it is simply not equipped to deal with. While in many ways this can be seen as continuing the pathological concern with change that has long dominated legal analysis in this area, these arguments differ in that they are often premised on a belief that recent changes have created a series of problems for the law that are not only unique but also unanswerable. Within this general framework, there is also a sense in which the past is increasingly seen as being irrelevant, and that while the legal concepts, ideas and institutions that make up intellectual property law may once have been appropriate, they are now outdated and obsolete. John Perry Barlow, the American cyberspace activist, captured the tone of this style of argument when in speaking of what he regards as the ‘immense conundrum’ created by digitised property he said, ‘[i]ntellectual property law cannot be patched, retrofitted, or expanded to contain the gasses of digitized expression … We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.’ In part this book is written against this way of thinking. More specifically, working from the basis that the past and the present are intimately linked, we believe that many aspects of modern intellectual property law can only be understood through the lens of the past. Moreover, while the law's confrontation with digitised property and recombinant DNA has created a number of real difficulties for it, much of what is taken as unique and novel about the interaction of intellectual property law and the new environment in which it finds itself can, especially when placed in an historical context, be seen as examples of the law working through an on-going series of problems that it has grappled with for many years.