Thursday 8 October 2015

Lawyers' skills and the internet revolution

I spotted "The intellectual property revolution" by fellow blogger and SOLO-ist Shireen Smith (Azrights) on the Internet Newsletter for Lawyers today, here. Apart from being one of the first people to consider the IP problems of the internet from a bottom-upwards perspective, looking at actual businesses and their concerns rather than starting with a raft of citations from Directives, statutes and appellate judicial decisions, Shireen is also someone who can ask an awkward question or two when seeking to clarify or debunk popular assumptions. Her opinions are always worth considering, even though I don't always agree with them.

In her article on the IP revolution Shireen has something to say about legal practice, something that solo and small practitioners may want to consider:
Another way in which the digital revolution has had tremendous impact on IP is that it has altered the skills and knowledge required to be an IP lawyer in the digital economy.

In the early days of the industrial revolution there were just patent agents as a profession. The separate profession of trade mark attorney emerged later.

Traditionally, these professions have been entrusted with IP registration work, while specialist IP solicitors and barristers handled copyright, or IP litigation work.

Nowadays solicitors tend to register IP rights too, while many patent and trade mark firms also provide litigation services. So, IP tends to be a fragmented area of practice, and increasingly the boundaries between the traditional professionals are breaking down [this breakdown of barriers is in part encouraged, and in part assumed, by some clients whose grasp of the divisions within the professions providing legal services is often slender and who prefer to deal with the devil they know rather than go through the uncertainties and occasionally the hassle of explaining what they do and what they are trying to achieve several times over].

Additionally, as IP is entwined with business, many IP services are offered not by the legal professions but by those with backgrounds in business or engineering or marketing. They offer IP valuation and commercialisation services outside the regulated sector [indeed, and while services such as trade mark or patent filing fall within clearly defined parameters, "IP valuation" and "commercialisation" are subject to no homogeneous definitions, rules or methodologies, which would make regulation difficult even if it could be imposed].

The widespread ownership of smartphones, and the trends in society towards a sharing economy, peer to peer lending, crowd-funding, use of big data, apps, and more, mean that the skills needed by an IP lawyer are quite different to what they traditionally used to be [the skills and disciplines of time management can be included here: it was so much easier to deliver complex work at a time when post was delivered just once a day and one could achieve isolation by moving out of earshot of one's desk phone].

What often falls between the cracks in the current climate is copyright advice, particularly in technology related areas like websites. If your IP lawyer does not understand the online dimension it can be difficult for them to offer effective advice around name choices [included in the copyright dimension are the persistent questions "how much is this course of action likely to cost me?" and "what am I likely to get out of it?", which regular exposure to copyright litigation and negotiation can help with, and for which the law books and cases are of little guidance].

Indeed the technological advancements that are transforming our lives mean that the web will be the only facet of many businesses. So the new breed of IP lawyers need to stay abreast of new developments, and emerging technologies in order to advise not just on the law, and legal documentation, but also on other aspects of doing business online.

Therefore, the right lawyer to advise a business in the digital world will be one with a good understanding of the web and technology.
What do readers of this weblog think? Do let us know!


  1. Knowledge of a sector that is relevant to your client is always extremely helpful. However, from the client's perspective, knowledge of the relevant law and the ability to apply it is paramount. I'm not sure how a client establishes whether his lawyer is a good learner but if there is a method it should be published. Recently, I discovered the world of electronic smoking. I had no previous knowledge but that didn't mean that it was impossible to advise the client. I am now quite an expert on this new industry and clearly it is already heavily mired in intellectual property disputes. My hasty education may yet come in useful again.

  2. Up to a point. I have heard arguments since the 1980s about how we need to understand technology to advise on, for example, IT contracts. Sometimes, these arguments are put by people who have immersed themselves in the technology, and feel that others who have not done so have not earned the right to advise in this area. This argument has always seemed a bit self-serving to me. Competence comes in many forms. Sometimes it is good to stand back from the industry chatter and analyse the situation from first principles.