Predatory IP Law and Canadian Innovation

Law and innovation are usually framed in technological terms. Discussions focus on the means to incentivize technological development and regulate the use of new technologies. The assumption is that technological change is consubstantial with societal progress. As a result, lawyers and policy makers focus their efforts and critiques on whether or not law effectively supports or regulates the latest innovations. Overall, the legal dimension of innovation remains a matter for specialists, confined to the fields of intellectual property and risk regulation, those deemed most capable of understanding the needs and ambitions of scientists, engineers and managers. Jurists, it appears, must respond to technology-driven social changes with some kind of natural deference.

But the consubstantiality of technological change and societal progress is, at best, folklore. It is a romantic account of a history spoiled with profound social disruptions provoked by technology, not to mention disasters. The opposite account is no more enticing as a string of wild, unjustified public fears of new technologies. In the midst of speculation, controversy, and anxiety, lawyers and policy makers are tempted to take refuge in familiar yet problematic assumptions, such as the link between technological change and innovation, innovation and growth, growth and welfare. Law, in this narrative, remains the functional servant to technology. Never allowed to question the desirability of technological change, since it would then question innovation, growth, and welfare. To appease innovators and avoid criticism, jurists portray any interference as mere ‘law lag’, a temporary and soon-to-be-fixed condition.

Is there any other path for jurists but self-imposed technological determinism? We have long known that innovation is a social construct, that technological change is both affecting and affected by social dynamics. Economists and geographers, among others, have shown how different conditions can spur or discourage different types of innovation. Social perceptions of what constitute successful innovation can differ from one place to another, and influence both innovators and policy makers. We are neither in want of such evidence, nor uncompelled to consider the social costs of innovation: will tomorrow’s technological unemployment be tantamount to the industrial revolution’s labour abuses?

Is it only a matter of identifying the values we wish to protect from technological change, and the means to do so? Or is it that we need to confront our own assumptions about what sort of legal interventions are appropriate in such matters?

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