Professors' Take: What Are the Emerging Fields of IP Law?
In this article, UNH Franklin Pierce faculty— including Tiffany Li, Assistant Professor of Law; Seth Oranburg, Assistant Professor of Law; and Ed Timberlake, Distinguished Visiting Assistant Professor--discuss emerging areas in IP law and what they think will be the next big developments in the IP world.
Q: What do you think is an emerging field or topic in IP law that future lawyers should focus on? Why?
Li: Privacy Law is a growing field of law, as is law related to artificial intelligence (AI). Today, businesses survive in data-rich environments, both in the tech industry and otherwise. With the increased collection and use of data, privacy law comes to the forefront as something that is really important for law students and lawyers to know. AI law is also important, as AI is growing in use across sectors of society.
Oranburg: From my view, a hot area is technology transfer that occur in marketplaces. There is an emerging concept of Technology Marketplaces. These Technology Marketplaces raise a variety of concerns including privacy and antitrust.
What we are experiencing is the beginning of what could be a shift like what happened in the late 18th century when stock trading changed from private one-off transactions to over-the-counter marketplace transactions. This could result in the democratization of access to IP, but it could alternatively result in accumulation of power in marketplaces.
We’ve seen such marketplaces grab huge power in terms of stock markets (the New York Stock Exchange dominated the market for stock markets until recently), goods markets (Amazon!), and social markets (Facebook).
We could see a similar power dynamic in IP markets because of several economic phenomena including network effects (where a network gains value as it increases uses and thus gets bigger and gains value and gets bigger etc.) or first mover advantage (although this didn’t work for MySpace).
The perceived advantage to such markets is they give small content creators access to more customers, and they give small buyers access to suppliers who would never have come onto their radar but for the market. In other words, the markets add value. But they also capture that value, and at some point, the market can eventually leverage that market power to gain more power.
Timberlake: Trademarks is an area of the law that is constantly changing, which is part of what makes it so interesting. As a system of signs, trademark law touches on many different aspects of culture, while at the same time being of great practical importance to many (perhaps most) businesses.
Q: Where should one start learning about these topics?
Li: You can start learning about these topics in law school. I encourage students to seek out relevant courses, internships and externships, and other experiences that might give you knowledge and skills relevant to practicing on these topics in the future.
Timberlake: I am constantly impressed with the amount of good, free, and accurate information one can find about trademarks online. Wherever you are, there’s probably somebody who is highly enthused about trademarks and part of that condition may express itself in the form of a blog, or a Twitter account, or some other online presence where trademark issues are discussed.
Also, if you are in an area where the records of applications for registration of trademarks are available online then you don’t need to wait for somebody to file a lawsuit or for somebody else to break a story—you can go directly to a never-ending source of trademark subject-matter.
Q: How are you, as a professor at UNH Franklin Pierce, encouraging awareness and scholarship on these topics?
Li: I teach courses like Privacy Law and Internet Law, and I include discussions of these new, emerging topics in many of my classes. My academic scholarship, such as my 2021 publication “Post-Pandemic Privacy Law” in the American University law review, also deals with these topics.
Oranburg: I hope to offer a seminar on Financial Regulation where students can grapple with these big ideas and work toward developing their own solutions. I am excited to be teaching contract law to emerging lawyers who plan to use their law licenses to help people grow business and create new technologies.
Timberlake: For starters, I never shut up about trademarks. Seriously. Don’t get me started. I basically say yes to every possible panel if it means I can talk about trademarks. I have an infrequently-updated blog called Trademarks Are Magic (https://timberlakelaw.tumblr.com/), a vlog simply called Trade Dress (https://tradedress.tumblr.com/), I’ve had a trademarks essay published in the Idaho Law review (https://www.uidaho.edu/-/media/UIdaho-Responsive/Files/law/law-review/ar...), and I’ve been on the trademark scholarship podcast Ipse Dixit (https://shows.acast.com/ipse-dixit/episodes/ed-timberlake-on-trademarks-...). But perhaps my favorite forum is Twitter (https://twitter.com/TimberlakeLaw).
My method is highly scientific: I get up in the morning, look at the most recent filings at the U.S. Patent and Trademark Office and then tweet about them. I would encourage everyone to do the same.
I’m also very lucky to have found my trademarks tribe at UNH Franklin Pierce School of Law. While many schools would consider one or two general courses to be sufficient, UNH Franklin Pierce, with a long history of trademark scholarship, lets me teach an entire course dedicated to trademark searching strategies, and another course on international trademark registration, not to mention the trademark and copyright work we do in the Intellectual Property and Transaction Clinic.
Q: What advice would you have for future IP professionals?
Li: There is a lot of opportunity, and you do not need a background in science and technology to succeed in areas of law related to IP and tech.
Q: Do you have any other thoughts about important developments in the field of IP law?
Oranburg: I am excited about new developments in IP marketplaces and technology transactions. I hope that my background in antitrust law and financial/securities regulation will apply to emerging issues regarding new platforms, marketplaces, and their appropriate regulation.
Timberlake: One development I’d like to see (and I’m doing my part to encourage) is for us to critically question whether continuing to throw so many fundamentally different concepts under the umbrella of “intellectual property” might be doing more harm than good.
Lawyers are word-workers, accustomed to looking closely at the meaning of words. Yet when it comes to “IP” we too often throw the term around loosely to mean any number of things, or nothing, and it’s not clear to me why.
There simply aren’t that many meaningful statements that apply equally and accurately to areas such as plant patents, vessel hull designs, mask works, and music copyrights—certainly not enough to justify the ambiguity wrought by continued use of “intellectual property” to apply to … everything.
All we have to do is stop saying “IP.” It’s not that hard to say what you mean.