Zbornik Hrvatskog društva za autorsko pravo, 2(2001); str.9-39.

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Influence of Technological Development on Copyright and Legal Nature of the Subject of Intellectual Property Protection

This article explores two assumptions on intellectual property right. The first assumption claims that the development of copyright law is essentially determined by features of the technology used by the author to create works of art. In other words, copyright law doctrines and laws are shaped and created in response to types of works of art created through use of certain technologies, and to relations arising from the use of such works. This is easily shown by historical analysis from which it is evident that the development of creation is followed by the development of copyright. The latter one always legs behind with legal solutions to precisely that extent to which it is necessary for the social relations to be shaped and created by the use of works of art that are made using certain technologies in the process of creation.

The second assumption is a bit more complicated to prove, because it claims that, due to its characteristics, intellectual property right is insufficiently explored in its essence. Although this article does not dwell on argumentation why the existing doctrinal dichotomy between copyright and related rights on the one hand, and industrial property rights on the other, cannot actually be sustained, because of the need to consider the intellectual property as a single branch of law, the article still addresses certain ontological issues of the subject of intellectual property right protection in order to better illustrate the arguments for the first claim.

If the view that intellectual property right is significantly determined by the basic characteristic of its subject of protection is accepted, numerous further questions arise on the present role of intellectual property right in modern societies. If we identify the basic characteristic of the subject of intellectual property right protection as non-material nature of the subject of protection itself, then we get a clearer view of intellectual property as a branch of law extending its protection to non-material objects, unlike the traditional property right protection. These non-material objects were simply not perceived as protectable before a certain level of development of civilization has been reached and certain copying technologies have been developed.

Hence, if the increase of importance and the place of the intellectual property within legal system in particular and social systems in general in the last two centuries is evaluated as an actual and constant trend, and the reasons for such increase are assessed, a profound change in the perception of pre-modern, modern and post-modern societies’ own realities imposes itself as one of the answers. It means that during the last two centuries social systems have gradually become aware of the increased importance of the protection of non-material values embodied in the results of human creativity. This awareness has brought about the increase in the level of legal protection granted to the results of human creativity, as an answer to the increased awareness of economic value of use of such results. In other words, modern societies, and especially post-industrial societies, have begun to consider the values realized from the use of intellectual property as one of the foundations for creation of their social prosperity. This process has gradually led to paradigmatic social change in which modern post-industrial societies have been reorganized in such a manner that a huge share of industrial output is realized through use of non-material goods protected by intellectual property rights. Simultaneously, awareness has been arising that human creativity increases resources of further social expansion, and that the social expansion based on the increase of available resources opens further possibilities, deemed very important by the societies that accepted such a system.

The article argues that if we accept the above assumptions and if we wish to fully understand legal nature of intellectual property rights, we must again explore legal nature of intellectual property as a branch of law and its basic doctrines. It is pointed toward insufficient degree to which it the nature of intellectual property law is explored, to the lack of understanding of the legal nature of certain characteristic legal doctrines of intellectual property right, and particularly to the low level of understanding of the nature of the subject of protection itself. Although the author undertook such imitial explorations, the results are not laid out in this article. The article deals with superficial probing of the nature of the object of protection and suggest that, for the purposes of the basic examination, such nature be determined as a relatively novel term in physics. The article proposes that the object of the protection of the intellectual property right be determined as “information”, in line with the meaning given to this term by the mathematical theory of information. Being aware that linking natural and social sciences for the research purposes is utterly unusual, and even unacceptable in the traditional scientific sense, the author still believes that, due to the changes caused by the same paradigmatic shift which gave rise to the referenced increase of social importance of intellectual property, there comes the time for overcoming the entrenched dichotomies such as the one between natural and social sciences. The author points out that these lines of thought are encountered recently more and more often.

Finally, the article examines the strong recent currents in the fields of sciences, especially natural sciences, and is specculating on the possibility that the new scientific perceptions, such as the “theories of everything” and the emergence of the “new kinds of science” bring about radical rethinking of the existing legal concepts. One of the examples raised, is the possibility to research the scientific properties of the physical concept of “gravity” and the legal concept of “property” in order to gain new insights in the meaning of law.

HDAPMladen Vukmir // Utjecaj razvoja tehnologija na autorsko pravo i pravna priroda predmeta zaštite intelektualnog vlasništva