Two Types Of Intellectual Property Lawyer

The great H. L. Mencken defined Puritanism as "The haunting fear that someone, somewhere, may be happy".

(I once heard Paul Volcker say the same of central bankers.)

This wonderful quote came to mind when I was chatting recently with a friend who has become editor of a leading magazine, with both a news-stand and a web presence.

My friend was quite relaxed about bloggers and fansites copying and pasting material from the magazine's main website, as long as it was properly attributed. It increased awareness and it promoted the magazine's credibility; it was, in effect, free and finely-targeted advertising.

But the publishing house's lawyers hated it. The material is copyright and, gasp, it was being used without authorisation.

Their haunting fear was that someone, somewhere, may be using intellectual property without a licence.

I sympathised, for I know that mindset well. And, for me, it raises a fundamental problem.

What is the place of copyright of content in the copy-and-paste generation?

The sheer ease with which one can now copy, download, and store any digital information undermines the traditional approaches to copyright.

And, for the conventional intellectual property lawyer, such ease does not compute; it must be stopped; threatening (yawn) letters must be sent; ISPs threatened, damages (and of course costs) demanded.

However, I think there is a more sensible view.

The circulation of content for non-commercial use can be seen as the digital equivalent of "word of mouth". It is a good thing, as long as the content is properly attributed, for it promotes the client's reputation and profile.

Intellectual property law will always have an important role in dealing with unauthorised commercial exploitation of proprietary material, or when content is passed off as the work of another.

There may perhaps be loss of royalties; but there are huge gains to be offset against the advertising budget.

The fundamental question is whether overall there may be more traffic to the originating website or more "real-world" purchases of publications, CDs, and even downloads.

That can be a difficult commercial decision for the copyright owner; but it is one which really should not distorted by the artificial effect of zealous and anxious copyright lawyers.