Speaker Spotlight Mark Dugdale reports

Digital killed
the legal star

ECTA’s Mladen Vukmir discusses the past and future of intangible assets in a
digital, networked world, finding that the law might be too far behind to catch up
Your session is entitled ‘Rogue Waves and Crosswinds’—will the
disruptive nature of the digital world be the focus, or have we moved
beyond that?
Let me put it this way—we ain’t seen nothing yet. Despite the digital revolution
happening almost two decades ago, or more recently if we pinpoint the
beginning as the introduction of the worldwide web, I’d argue that we are
closer to the beginning of the transformation than its end.
In practical terms, the best example is the music industry. The force of this
technological change has reformed the business entirely, totally redefining
users’ wants and needs. The movie industry was next and the developments
did not stop there.
Has how we consume content really changed that much?
I’d argue that society is continuing to dematerialise its reality. What used to be
material, for example, a musician playing a song to an audience, became an
analogous record. Then, with digital technology, its nature changed. The song
became a copy, or equal to the original. That is not the same as the analogous
mediums. Now, previously material objects, for example, a tennis shoe, will
become digital files, shareable like a song and likely printable. Advanced
printing by nanotechnology, for example, has the potential for us to be printing
our shoes via our desktop computer at home in a decade.
In such a scenario, we might still be buying our laces, but the implications
are profound. What happened to copyright owners when copies of their

The best example is the music industry.

The force of this technological change
has reformed the business entirely, totally
redefining users’ wants and needs

6

works became instantly shareable? The same could well happen to shoe
brands, faced with the possibility that their once intricate and complicated
designs could be replicated at the press of a button.
Isn’t what you describe simply counterfeiting and piracy, both
age-old problems?
Piracy and counterfeiting are remnants of the analogous age. Now we have
perfect copies and instant shareability. I’m not sure this is merely piracy and
counterfeiting anymore, but something much more disruptive.
How is the law reacting?
My major concern is that the legal profession has lost a lot of credibility over
the past decade by failing to listen and repeating the mantra that the law can
adapt. Systems are undergoing fundamental changes that, in my opinion, the
law has failed to grasp. Consistency has been forgotten in favour of the case-
by-case basis as the increased number of increasingly different transactions
simply cannot be dealt in any other way. The law needed to set a good example
over the last decade but I think it has failed to do so, so much so that I worry
society might conclude that it is failing its basic test, to provide guidance.
Can the law ever again provide that consistency, and by extension,
become the guiding hand once again?
To quote on Croatian academic: “We won’t see consistency in legal systems
during our lifetime.” I think that says it all. Whether the law will be able to
keep its central role is questionable because of that lack of consistency. Laws
traditionally provide guidance and without consistency, society will inevitably
reconsider its usefulness.
Having said that, I don’t think, ultimately, it’s inconsistency that’s hurting the
law, but complexity. It’s so at odds with how we run our societies today. A few
decades ago, a legal document was carefully crafted and painstakingly built
into a unique piece of knowledge by lawyers. Nowadays, a legal document is
often just a form to be signed that glances at typical situations, while complex
legal issues, the disputes, are being dealt with by alternative dispute resolution.
Uniform Dispute Resolution Policy (UDRP) proceedings are a good example,
as are the mechanisms of content platforms and social media. They don’t
have law so much as rules, or preferred business practices. They are so
unlike legal systems that they don’t even provide for appeals. I figured
that out during a UDRP case that I oversaw. One of the parties wanted
anonymity, which was unusual because the decisions are published online
and are publically available. But I decided, referring to UK privacy law, that
the party was entitled to this anonymity. That practice has persevered in
the intervening years, even though it doesn’t constitute law. These types of
business mechanisms are not necessarily going to be consistent, but they
exist, as does a resolution of sorts.
7
Speaker Spotlight
Mladen Vukmir
ECTA council member and member
of the local organising committee
Partner at Vukmir & Associate
Mladen Vukmir practices intellectual
property law in Zagreb, Croatia, where
he founded Vukmir & Associates in 1991.
Mladen specialises in intellectual property
and information and telecommunications
law, licensing, commercial law, litigation,
and alternative dispute resolution.
Now, I don’t mean to sound dramatic. The law isn’t going to disappear, but it’s like
the concept of layering in technology. The TV didn’t kill the radio, and the radio
didn’t kill print. They just shift. This is what I think is happening with the law. The
rule of law is losing its position as the central axis of how we run society.
But laws can be changed, can they not?
Take the examples of the Paris and Berne Conventions, which, in my opinion,
are two zombies. We prop them up because, politically, we cannot come up with
new treaties. There is no agreement in the world. When the multilateral system
that we have for negotiating treaties is broken down, there is a proliferation of
regional and bilateral treaties, championing the rights of territoriality enshrined
in the old conventions. The Berne and Paris Conventions are not serving
modern businesses and economies properly. There is the European single
market, which is an early beacon of the direction we are going to, followed
by the emergence of the digital single market, which is global. It’s affecting
the whole principle of territoriality, on which the conventions were built. The
principle makes no sense for modern society.
In addition, it’s not only territoriality that has changed but the forms of creativity
too. IP rights were created to fit certain forms of creativity. But what has happened?
The nature of creativity changed. We once had gifted individuals inspired to create,
but they were few. Today, everyone is a creator. We have this constant churn of
creativity that knowledge-based economies are constantly producing. The result
is it’s not perfectly aligned with what we were protecting when we first designed
IP rights. We just can’t fit our creativity in those existing categories.
We live with these zombie conventions and pretend they work, but they
don’t. The whole system of intellectual property is not very strong with these
conventions at its back.
Mladen’s discussion, ‘Rogue Waves and Crosswinds’, is the eighth session of
the day, taking place at 14.30. He will elaborate further on the past and future
of intangible assets in a digital, networked world.
 Daily: Day 3
ECTA 35th Annual Conference, 22-25 June 2016, Dubrovnik, Croatia

Copyright Reform China Spotlight Bad Faith

New second VP flies in,

Budapest confirmed

The opening day of the European Communities Trade Mark

Association’s 35th Annual Conference saw the location of next year’s
event and the new second vice president confirmed.

ECTA confirmed that the 2017 annual meeting will be held in Budapest,
Hungary, between 28 June and 1 July.

With F Peter Müller stepping aside and Ruta Olmane taking over as
president today, Anette Rasmussen has been unanimously elected as
second vice president.

Rasmussen was previously a member of ECTA’s law committee and has

served as vice chair of the European IP Office link committee.

ECTA’s new leadership team is now set, with Sozos-Christos

Theodoulou taking over as first vice president and in a position to
move up to president in 2018.
Continued on p3
Conference Programme
Friday 24th June 2016

08.00-18.30 Registration and information desk - Exhibition Area

08.00-13.00 Parallel sessions

09.00-11.00 Fourth session - Elafiti Conference Hall 3+4

Copyright: Creating values and protecting them—we are not alone

09.00-11.00 Fifth session - Elafiti Conference Hall 1+2

Prior right agreements: Pitfalls and ploys

11.00-11.30 Coffee Break - Exhibition Area

11.30-13.00 Sixth session - Elafiti Conference Hall 3+4

From Europe to China: IP Key, the Chinese trademark reform and other
related IP matters

11.30-13.00 Seventh session - Elafiti Conference Hall 1+2

WIPO: How to file a global trademark without national objections

13.00-14.30 Lunch - Main Hotel Restaurant & Nocturno Wine Bar

14.30-15.30 Eighth session - Elafiti Conference Hall

Rogue waves and crosswinds: The past and the future of intangible
assets in a digital, networked world

15.30-17.00 Ninth session - Elafiti Conference Hall

Case law update

17.00-17.15 Summary - Elafiti Conference Hall

17.15-17.45 Closing reception

19.00–23.00 Gala Dinner at the Valamar Resort