Applying the precautionary principle to IP protection is critical --- failure ensures the public domain collapses

(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)

C. Applying the Precautionary Principle in the Intellectual Property Context In considering the application of the precautionary principle in the intellectual property context, three preliminary questions must be addressed. First, is it appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain? Second, in what types of situations (if any) might the precautionary principle be usefully applied in the intellectual property context? Third, how might the precautionary principle be instantiated in the intellectual property context? 1) Is it Appropriate to Apply the Precautionary Principle in Order to Guard Against Harm to the Public Domain?

As noted above, the precautionary principle emphasizes both anticipating future harm (recognizing that not all harm can be remedied ex post facto),37 and taking preventative measures in the face of uncertainty with respect to harm.38 As is the case with harm to the environment, not all harms done to the public domain can be remedied ex post facto. For instance, it has been argued that copyright laws may prevent individuals and institutions from taking steps to preserve, for the benefit of society, existing expression in which they do not hold copyright, such as by transferring old movies from film prints to digital files.39 The loss of this expression through the passage of time, or by an unfortunate event such as a fire or a flood, is irreversible and would have a negative impact on the public domain.40 However, it cannot be assumed that the risk of harm to the public domain caused by expanding intellectual property protection is the same as the risk of harm to the environment caused by pollution or development. For instance, it is generally not argued that permitting the release of a noxious substance into a waterway would benefit the environment. In contrast, if we accept that intellectual property acts as an incentive for individuals to invest in the creation and dissemination of expression, and that this incentive leads to the creation and dissemination of expression that would not otherwise have been created or disseminated, then increasing intellectual property protection may benefit the public domain, as opposed to harming or impoverishing it. Expression, once created, immediately becomes part of the public domain with respect to certain uses (fair dealing, for instance, in the context of copyright), and, at a later date (after the expiration of the term of intellectual property protection) for all other uses.

This is not to say that increasing intellectual property protection always (or ever) has a net benefit on the public domain. While increasing intellectual property protection may act as a further incentive for the creation of new expression, it also expands protection for existing works. Thus, although expanding intellectual property protection, for instance by increasing the term of copyright, may result in new works being created (making certain uses of those works, such as fair dealing, immediately available as part of the public domain), it also extends the period of time in which other uses of existing works will not be available as part of the public domain.

As well, at a certain point, it can be assumed that the incentive function mentioned above will cease to operate. At this point, expanding intellectual property protection will not result in the creation and dissemination of any new works (works that would not have been created or disseminated absent the expanded intellectual property protection). Said differently, any expansion of intellectual property protection at or past this point will not provide any benefit to the public domain. Instead, it will only result in a contraction of the public domain.

In applying the precautionary principle in the intellectual property context, the risks posed to the public domain by expanding intellectual property protection must be balanced with the benefits to the public domain that flow from expanding intellectual property protection. This is a complicated calculus. However, the complicated nature of this calculus should not bar the application of the precautionary principle in the intellectual property context. Given the significant degree of uncertainty with respect to the impact of any expansion of intellectual property rights on the public domain, and the possibility that expansions in intellectual property might negatively impact the public domain, it can be argued that if the public domain is seen as valuable and worth protecting (an assumption upon which this chapter is built), preventative measures should be taken, and some version of the precautionary principle ought to be applied.

The application of the precautionary principle in the intellectual property context can also be justified by reference to the values that may be seen to underlie the precautionary principle. Feintuck, for instance, has suggested that the precautionary principle has an “essentially collective orientation”,41 and that it has “potential utility . . . . as an aspect and reassertion of the public domain in the face of private economic interests.”42 In referencing the public domain, Feintuck is referring broadly to the set of interests that belong collectively to the public and not specifically to the public domain in the intellectual property context. However, his statement is directly applicable in the intellectual property context. The application of the precautionary principle, in the intellectual property context, may provide some degree of protection for the set of collective interests and values that are furthered by the existence of a robust public domain, in the face of private economic interests that may attempt to encroach upon the public domain through intellectual property reform.