Intellectual property and contracts interact as business laws in many practical ways that escape the attention of journalists, legal academics and younger lawyers.

Experienced IP lawyers focused on transactional and advisory work (less so on IP litigation) come to realise something.

To overstate it for emphasis, the thing they come to realise is –

The dirty little secret of IP lawyers is that it’s all about contracts.

This truism resonates as I read brouhaha about the 2009 IceTV Australian High Court result, what Google is up to with Google Books, and a myriad of other IP law news and developments. People love to write or natter about this stuff, less so to provide practical or holistic analysis. So there’s a mountain of stories each month about copyright piracy, breaches, and infringement and a few about the practical need for IP auditing, record keeping, registration, management and commercialisation.

Why do people write so much about IP and with such imbalance? One reason is IP remains a sexy subject, or so law students, academics, journalists and other people think. So they write about it… incessantly, and especially about copyright. There’s probably more written about copyright law than all other areas of IP law put together (patents, confidential information, trade marks etc).

Inspired by the photo for his article, allow me a metaphor to explain something practical about the interaction of intellectual property (IP) and contract law. It’s about why contracts are more significant than IP.

IP is like light, like a muse, it calls you to look at it and it is coming through a blue door. You approach and get in the habit of searching for light, meaning, intellectual property.

In time you as a viewer/reader/user of light are asked to enter into a contract to continue to look through that marvellous blue door. You readily “sign up” with a pen or mouse click.

As you enter the contract, by mutual consent a legal lock and key is placed on the IP, the door you are using and your behaviour. In addition to general IP law, the contract further regulates your access rights.

For the door controller, it’s nice to have IP law protection, it’s often better to have these contracts! That’s why it makes sense for websites to have terms of use or terms and conditions.

To illustrate some more, we hear about authors owning their IP and licensing it to publishers. Sounds wonderful, one owns, the other uses.

But when you examine the contractual details most authors are required to license (under a contract) their copyright to the publishers, and often on very broad terms. The authors and their works are taken through the door, behind an IP contract door, lock and key. And with online content, it is now customary for commercial content providers to do the same to users, ie use a contract door, lock and key.

 


Photo credit: A door in Central America. Copyright © Henrik Michaelian 2008

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