Internet Distribution of Intellectual Property Protected Works in the United States, in Japan, and in the Future
Anawalt, Howard C., Santa Clara Computer & High Technology Law Journal
Attorneys will face increasing demands to provide practical answers to legal problems that have international law and foreign law questions built into them. Clients will need legal advice that is well informed concerning their own national laws and the laws of other nations where they do business. The attorney giving advice will want to be as accurate as possible under the circumstances. Yet, the client will scarcely have time or resources to get detailed legal advice on both foreign and domestic law on all matters. How much legal advice a client can afford to obtain depends on expenses and time. Some clients possess large economic resources they can devote to legal opinions and proceedings. Others do not. (1) Even clients with a lot to spend, however, often cannot afford the time to do all legal inquiries, which can proceed at a snail's pace.
The practicing attorney will need to guide the client on the use of legal resources. When must one obtain detailed foreign legal information? On the other hand, when will more general concepts suffice? Practicing attorneys handle these kinds of questions of priority in their domestic practices all the time. In many respects, prioritizing in the international arena involves applying the same skills of judgment to new situations.
Many of the international questions that arise will have to do with inventions and intellectual property. Today, neither inventive processes and their use and distribution nor commercial transactions are well confined by physical boundaries. (2)
In November and December 2000, while serving as a visiting researcher at the Institute of Intellectual Property of Japan (the "IIP"), I investigated some questions concerning the legal problems arising when inventive or creative works are distributed or used in an Internet environment. This Article draws upon that work and republishes a substantial portion of a report that I prepared for the IIP. (3)
A. Distribution in the Internet Environment
Computers take on lives of their own. They have become indispensable in scientific research, in engineering of all kinds, in many business processes, even in some homes. Recent widespread use of computers in connection with electronic communications such as the Internet has expanded the impact of computers even further.
Current use of the Internet is based on a combination of old and new technologies. The Internet itself has been around for decades. It was originally created as a system of communications set up by the United States government's Defense Department. (4) The use of the Internet was largely restricted to research and industry communications until recent years. The basic technologies involved are computers linked by telephone lines and wireless links. Various protocols enable the communication and computer technologies to work together smoothly. Some of the more recent innovations include such things as data compression, which allows rapid communication of information. The combination of computer and communication technologies has created one big computer, which knits the world together commercially and socially.
The computer network aids businesses when they search for materials and expertise. It facilitates "just in time" deliveries and offers other efficiencies. The last several years have brought the development of the commercial use of the Internet and its offspring, the World Wide Web. This use has been sensational. It has ushered in discussion of a "new economy" and an obligatory identification of businesses as "dot coms." (5)
The network of computers also blurs some distinctions between business and personal transactions. In the past, one assumed that businesses would have a definite physical presence--an office, an inventory or factory, a staff. It is now possible for a person or entity to function, or appear to function, as a business with little more than a computer connection and a small room to cover one's head. …