KIWI EXPERT IN INTELLECTUAL PROPERTY LAW

Professor David Vaver is Reuters Professor of Intellectual
Property and Information Technology Law, University of Oxford; Director, Oxford Intellectual Property Research Centre; Professorial Fellow, St Peter’s College, Oxford. He is the inaugural New Zealand Law Foundation Distinguished Visiting Fellow, 2000.
On his three month visit here recently, he was hosted by Otago, Victoria, Waikato, Canterbury and Auckland universities where he gave series of lectures, and spoke to government departments and ministries on intellectual property practice and policy.
Originally from Auckland, Vaver completed his law degree at the University of Auckland. After postgraduate degree from the University of Chicago he returned to teach at the Law School at the University of Auckland for seven years.
He introduced course on intellectual property which is still taught at the law school.
An internationally acknowledged expert in IP, Vaver believes few people in business can afford not to know about IP because it crops up everywhere.
“From the moment you set up your business, choose your trading name, your website domain name, you’re involved with IP. First you better make sure you’re not infringing on anyone else’s name, then, having got it, you make sure no one else will use it or something close to it – which is very common problem.
“Whenever you write business letter you’ve created an original literary work which is protected by copyright for your life plus 50 years.”
So if you’re writing business letters, creating business forms or computer programs, there’s always the potential for copyright, and from that point of view, managers ought to have at least rudimentary knowledge of IP, says Vaver. But his lectures and talks here were on another level. “I’ve been talking about what this area of law is for and whether it’s doing what it’s supposed to be doing.
“What IP should be doing is encouraging creative and adventurous people to do their thing and contribute materially to their own position and also potentially, to economic growth. “My feeling is that it’s not doing that terribly well and it’s too protective.
“Take the business letter for example. Why on earth should memo three sentences long be protected by copyright at this point of time? It really doesn’t contribute to economic growth.
“And part of what I’m saying is if you want vibrant economy, be careful that on one hand you have IP law that encourages an appropriate amount of creativity. That is, creativity that wouldn’t occur if not for that law, but at the same time doesn’t inhibit people from experimenting and innovating.
“At the moment the level of protection is so great, it’s often difficult for people to come up with new technologies independently without treading on somebody’s work.
“I think computer programs and software development are good examples. Copyright protects that automatically. The question is what is being protected.
“Very often it’s not just the literal code that’s being protected but structures, the way in which you create the logic behind computer program. So anyone who, having seen the program, follows the same logic path may end up infringing copyright in computer program. The big question in this area is, is that good thing?
“It may give too great protection for the first person to think up particular logic structure for program. The problem is that copyright or patent is two edged sword. If you have one you think it’s terrific because you can stop someone else from doing something – at the same time if someone else has one it’s not so great for you,” says Vaver.
“Many of the problems also stem from low levels of originality that create copyright, while on the other hand you have an expansion of what constitutes infringement. Once you have something that’s similar and another person has access to it, there’s an inference that there’s been copying.”
The worst case in this area he says, was in the 1980s where former Beatle, George Harrison, was sued over his song ?My Sweet Lord’.
“The copyright owner of the Chiffons’ song, ?She’s So Fine’ sued Harrison, saying an eight note sequence was the same as the Chiffons’ tune. When he analysed this, Harrison said ?Yes, I admit I heard the song eight years ago when it was hot on the hit parade. Then I forgot about it. It entered my subconscious. I never thought about it.’
“But the American courts went on to say that it didn’t matter. Subconscious copying can still be an infringement of copyright. In other words you can copy without knowing you’re copying.
“So once you have that low level of creativity which makes the work copyright and broad concept of what constitutes copying, copying without knowing, that becomes very dangerous especially in an era where one is bombarded with information.
“You have to ask yourself from the point of view of public policy, is it good law if it inhibits creativity and competition?”

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