Symbolic Solutions to Problems, or Solutions to ...

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Symbolic Solutions to Problems, or Solutions to Symbolic Problems? Pieter Kleve1

In the twenty-five years I worked with Richard De Mulder and Kees van Noortwijk at the Centre for Computers and Law – formed by Richard in the beginning of the eighties – we wrote about many different subjects of computers and law. The common denominator has always been our shared amazement about the way lawyers (but not only lawyers) dealt with legal questions when information technology was involved. We came up with numerous explanations for this peculiar behaviour of lawyers, but someway none of them seemed satisfactory. Our most recent ‘insight’ is, that it has most likely not so much to do with information technology ‘as such’, but that it is a kind of default attitude of men towards ‘change’, towards ‘the newness and the unknown’, towards innovation.2 We also believe that this attitude follows a kind of pattern. Once recognized, legislators and decision makers will have the option either to ignore or neglect this pattern, or to take advantage of this insight. Anyway, the chance of a more rational approach and, consequently, a more beneficial outcome will increase. In this paper I will point at some major legal developments we witnessed in the last twenty-five years. Simple and plain analysis of these developments cannot but result in wondering what problem we actually solved, or even if we actually did solve a problem. And if one can rightly doubt whether problems have been solved, then what could be an explanation for this ‘phantom legislation’? With an eye to the twenty-five years to come – after all, with Richard’s retirement it ain’t over yet – I will conclude with the approach we recently formulated for dealing with new developments in the ‘information society’. To our belief we should pay more attention to the ‘normative effect of technology’, rather than trying to get technology encapsulated in norms that no longer seem to meet our needs and expectations. For positioning this approach in contrast to the way most legislators and decision makers have been dealing with technology so far, we denote this approach ‘the new school of law and technology’.3

It was twenty-five years ago. Are computer data (legally) ‘goods’? It was twenty-five years ago when I read the verdict of the Court Arnhem, in which it decided that computer data were embezzled.4 The grounds for this 1

Pieter Kleve is associate professor at the ESL Centre for Computers and Law. Si Vis Pacem, Paradigma!, farewell lecture Richard De Mulder, 1 July 2011. 3 Www.newschoollawtech.com (under construction). 4 Court Arnhem, 27 October 1983, NJ 1984, 80 (computer data). 2

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decision were similar to those of the Dutch Supreme Court in the electricity verdict of 1921: electricity is a ‘good’ that can be stolen, since electricity is transferrable, reproducible and available to men. I took notice of the verdict of the Court Arnhem as something that goes without saying and didn’t pay much attention to it. For probably a vast majority of lawyers, however, the verdict wasn’t obvious at all. To me, it was totally unclear why this verdict gave rise to so much emotion. Although many opposed the verdict, none of them would have wanted the ‘crime’, the embezzlement of computer data, to go unpunished. It appeared that the main objection was the tangible nature of computer data. Lawyers displayed a strange urge to argue that computer data couldn’t possibly fall under the legal definition of ‘good’, since computer data are indisputably intangible. So, instead of solving problems, or being content with a solution, lawyers choose to create problems. Let me be explicit about this, lawyers are fully entitled to give meaning to a certain term beyond what is meant by this term in ordinary language. But not per se! A reason to consider intangibles, e.g. transferrable money, or shares, to be ‘goods’, may be to have the ‘goods regime’ applicable. A reason to consider tangibles, e.g. agricultural products, not to be ‘products’, may be to exclude such products from ‘product liability’. But in the case of computer data we deal with tangible objects without any reason not to treat them like that. Just to be perfectly clear, the question whether information can be property5 is a different one than the question whether data can be property. Data, usually referred to as patterns that may contain information, are concrete, tangible objects. Information, on the other hand, being interpreted data, is abstract and intangible. It would be difficult to say that information has been stolen, because that would point to a situation where someone unlawfully acquired an answer to a question, through interpretation of data. To say that someone stole your computer data isn’t hard at all to imagine. After all, computer data is being transferred from one place to another all the time. In The Netherlands we now have the remarkable situation that there are penal laws with respect to ‘goods’ and penal laws with respect to ‘computer data’. And the funny thing is, this is not to treat computer data differently from goods, but to treat them the same as goods. Let me give two examples of where this absurdity leads to. Since lawyers decided that computer data are intangible, penal laws with respect to ‘goods’ are no longer applicable. So, next to ‘damage of goods’ (article 350 Penal Code) we now have ‘damage of computer data’ (article 350a Penal Code). But what, one might ask, is it exactly that is damaged under this article, if computer data are intangible? Another example is the untenability of the position that computer data can’t be stolen. Similar to the damage of goods, lawyers had a problem with the 5

See: Samuelson 1991.

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applicability of the article about the confiscation of goods. So nowadays, next to the article about the confiscation of goods by the justice authorities, we have an article about the confiscation of computer data by the justice authorities. But why, one might ask, if it is feasible for the legal authorities to confiscate computer data, wouldn’t it be feasible for thieves to steal data? And isn’t it so, that the only rational explanation for the feasibility of confiscating computer data must be that computer data are tangible?

Electronic ‘bookkeeping’. What’s in a word? In The Netherlands computers are sold for bookkeeping purposes ever since the seventies of the last century. Despite this common practice, lawyers worried about the legal force of computer bookkeeping. The legal obligation didn’t refer to ‘computers’, but to ‘books’. Eventually, in 1993, the law was changed in the way that ‘other means’ was added to the respective articles.6 Lawyers and bookkeepers must have breathed a sigh of relief after this amendment. But why? What problem was actually solved? Was there actually a problem? I have never heard of a case where the tax authorities refused the admissibility of the accounts of an organization on the ground of the electronic nature of it. So, from that perspective one can hardly say that there was a problem to address in the first place. The amendment didn’t ‘solve’ anything either. Computer bookkeeping didn’t gain legal force. It would be ridiculous to assume that in the case where the tax authorities would doubt the integrity of the computer administration, an organization would be able to get away with it with reference to the said amendment.

Electronic signatures. Again, a matter of integrity Another obstacle for widespread electronic communication was found in the question of the reliability of electronic messages. Electronic messages could easily be altered, without leaving traces of alteration. On top of that, the sender of an electronic message could easily deny being the one that actually sent the message concerned. With all these uncertainties it was said that society couldn’t fully benefit from the advantages of electronic communication. Like ‘paper communication’ could be authenticated by putting one’s signature on it, ‘electronic communication’ should be authenticated by putting an ‘electronic signature’ in it. A general consensus was acknowledged for the desirability of a legal framework for ‘electronic signatures’. An electronic signature is not the signature of a bionic men. What is meant is an addition to the electronic message of a sign, enabling the authentication of the 6

Stb. 1993, 598.

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electronic message, meaning determination of the identity of the sender, and the consent of the sender with the content of the electronic message. Today, the most reliable way to accomplish this is by the cryptographic method known as ‘asymmetric encryption’. Around the year 2000 and on, all over the world ‘electronic signature’ acts have been implemented. But what is it exactly that these e-sign acts have established? The answer to this question varies from little to nothing. The insignificance of a legal framework for ‘electronic signatures’ isn’t difficult to explain.7 The integrity of a document (of ‘anything’) is not a legal matter, but a factual matter. One can rely on something, or one can’t. A legal matter is, how to treat documents that aren’t reliable (or that are reliable). And isn’t this what lawyers do all the time? For that reason, this new legal framework couldn’t possibly state that ‘electronic signatures’ are reliable, that a person is legally bound by an ‘electronic signature’. Not even by ‘asymmetric encryption’. Paraphrasing any e-sign act, it says nothing more than ‘if a method for encryption is used that makes a document reliable, one must rely on that document’. The question is, did we need a legal framework for that?

E-commerce directive. Anything but e-commerce The e-commerce directive is another example of unnecessary regulations.8 In the light of existing regulations concerning the internal market of the European Union, it seems that the establishment and information requirements, section 1 of the directive, don’t have too much to add. The requirements of section 3, contracts concluded by electronic means, very much look like a manual ‘how to design forms’. In that regard, it suffers from a similar simplicity as the distance selling directive,9 where requirements seem to be copied from a beginners handbook on marketing. Since a clear system, with the possibility to correct input errors, is to the benefit of both suppliers and consumers, such a procedure is rather obvious, and, to that extend, superfluous in a directive like this. Important subjects that are addressed in this directive are ‘spam’, and the liability of intermediary service providers. These subjects, however, do not solely relate to commercial activities on the internet. Preferably they should be made part of an international treaty regarding access and security of the internet infrastructure. Regulation of the internet infrastructure is one of the major issues I refer to below, in ‘challenges ahead’. It appears that this directive contains arrangements for all sorts of activities, with the exception of e-commerce. The electronic commerce directive basically is 7

The emphasis here lies on ‘legal framework’, not on the use of encryption. Directive 2000/31/EC of 8 June 2000. 9 Directive 97/7/EC of 20 May 1997. 8

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about electronic communication related to commercial activities. The commerce doesn’t necessarily have to be ‘electronic’. As a matter of fact, what it turns out this directive actually does not regulate, is when the ‘commerce’, the subject matter, is electronic. Information goods – be it software, music, movies or texts – nowadays not only can be ordered electronically, but also can be delivered electronically. In The Netherlands, amongst lawyers this new distribution channel could lead to an incomprehensible difference in the legal qualification. If one buys e.g. a James Brown album and has it delivered by means of the ordinary highway, the transaction constitutes a sale of ‘goods’. The same James Brown album, however, delivered by means of the electronic highway is considered to constitute the provision of a ‘service’. It seems to be just another result of the complicated or rather muddled status that lawyers have attributed to electronic data files.

The digital agenda in intellectual property. On a temporary basis. Considering the fact that ‘chips’, ‘software’ and ‘databases’, being all products of the human mind, already qualify for the legal term of ‘work’, the extraordinary attention to the field of intellectual property has probably caused more questions than it has solved problems. The sui generis chips protection regime also figuratively takes a special place. The by far most radical change the US SCPA of 1984 brought about was not that from then on semiconductors were legally protected, but that a sweep was made from the principle of assimilation10 to the principle of reciprocity. Where, in general, ordinary copyright regulations apply to works despite their country of origin, under the US SCPA chips from foreign nationals became only protected when in the country of origin a similar chips protection was implemented. As such the US SCPA would be better categorized as industry policy rather than as IT law. The computer program and database protection regimes caused all kinds of questions and insecurities. To name some. For the applicability of copyright protection, software and databases only needed to be characterized as a ‘work’, an original work of the human mind. Now, it has become necessary to have a distinct definition of what constitutes a computer program, or what constitutes a database. It appears a hurdle has been added, instead of taken away. On top of that, several other terms were introduced that have given rise to new legal disputes, e.g. the meaning of ‘lawful acquirer’, ‘intended purpose’, ‘error correction’ etc. But the most peculiar one of all seems to be the ‘temporary reproduction’. When a computer is switched on, or an application is started, in the opinion of lawyers a reproduction of the software has been made into the RAM of the computer, into the working memory. This reproduction is deemed temporary, it 10

Article 5(3) Berne Convention.

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only lasts until the application is terminated, or the computer is switched off. When lawyers hear the term ‘copy’, they immediately get worked up: the right to make copies is strictly regulated in copyright law. This perception promotes the act of starting up a computer program to an act for which the consent of the copyright holder is required. Moreover, this perception allows any act one wishes to perform with a computer program to be subject to the consent of the copyright holder. So even after one has bought (and paid for) a computer program, the copyright holder remains in power. This power extends as far as the use the buyer wishes to make of the product and thus goes way beyond the essentials of copyright, i.e. the right of reproduction and the right of making public. From the perspective of technological evolution, the essentially new property of information technology, i.e. computers, is that they have the ability to interpret data, something that until now only humans were capable of.11 What we see here is that it simple isn’t recognized yet as a new characteristic of machines. The comical consequence is that these laws now seem to address behaviour of machines, instead of behaviour of men. What is most worrying , however, is that the sheer coincidence of the way computers operate, by default can lead to a ludicrous legal regime, without anyone interfering. The temporary reproduction also plays a role in the harmonisation of copyright on the internet. Using a computer program, or a database, browsing the internet, listening to James Brown, or watching a movie, it all produces temporary reproductions. After bringing them into the realm of the reproduction right, these temporary reproductions are made an exception to that right, be it not always categorical. As long as these ‘reproductions’ form part of the technical process, it would make more sense not to address them at all. However, when temporary reproductions transform into ‘copies’, they will fall within the reach of the law. This would be the case, e.g., where I would move a temporary reproduction of the song of James Brown I just listened to, from my ‘Temporary Internet Files’ folder to the ‘My Music’ folder. That would constitute a copy intentionally and purposely made by men.

Information technology ‘as such’. The continuing story of Patent Place The patentability of computer software appears to be a hard nut to crack. As Helen Gubby so clearly demonstrated, what is striking is that the present day discussions on the patentability of software bear a remarkable similarity to the discussions that took place during the Industrial Revolution with respect to manufactures. Lawyers asked themselves then, as they do now, what the subjectmatter of a patent could be, what manner of legal construction a patent is and 11

Whether animals interpret data, or rather react instinctively will be left aside.

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whether this temporary form of monopoly was beneficial to society or a hindrance to progress.12 In this paper I will not elaborate on the situation that, despite the fact that computer programs ‘as such’ are categorically excluded under the European Patent Convention, and despite the fact that EC directives on the patentability of computer programs just don’t come about, in practice also in Europe lots of software-related inventions are being patented.13 No, what’s puzzling me is the supplementary indication ‘as such’. Would it be a proper answer to the question, whether software is patentable, to say ‘software as such’ isn’t? What I’m wondering is, what exactly is the difference between software, and software ‘as such’? And, if software ‘as such’ isn’t patentable, might software not as such be patentable? Is anything ‘as such’ patentable, for that matter? The confusion probably lies in the circumstance that computer programs are frequently referred to as abstract, mathematical algorithms. After all, in the European Patent Convention computer programs are categorized together with ‘schemes, rules and methods’. Just as we have seen with the ‘goods discussion’ above, what lawyers apparently have difficulties with is the recognition of the tangible form of computer programs, i.e. the electronic data file. As far as that is concerned, computer programs don’t differ from any other ‘thing’. Like any concrete object, there can be an abstract notion of software, as there are abstract notions of cars, or of bridges. But once a computer program is built, it is as concrete as a manufactured car, or a constructed bridge. Computer programs can be ‘goods’, ‘products’ and ‘inventions’ in every respect. The mere observation that my computer is functioning once a program is loaded, and that this functioning differs whether it is loaded with Microsoft Word or with James Brown, makes it clear that some concrete object must be present. Unless we want to enter in a metaphysical discussion. It looks like the supplementary indication ‘as such’ is doing exactly that.

Some explanations The impression is, that most new legislation with respect to information technology doesn’t really contribute to solving problems. Computer law is more a matter of interpreting and applying existing laws than developing new laws. If new laws cannot produce a different effect than the existing ones, then it is simply a waste of money to make these new laws. These unnecessary laws are referred to as ‘phantom legislation’.

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Gubby 2011. Under the U.S. Patent Act (35 USCS Sects. 1 – 376) case law developed perhaps somewhat more favourably, but essentially rather similar to the developments in the EU.

13

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The term ‘phantom legislation’ covers laws that apparently regulate something as well as laws that regulate something apparent. Examples of the first one – situations where information technology does not require legislation because they are already covered by existing law – are the ‘data versions’ of the ‘goods’ articles and the various directives in the field of intellectual property. The bookkeeping amendment and the legal framework for ‘electronic signatures’ carry a bit of both. The regulation isn’t required since bookkeeping and signatures are already dealt with in the law, and it is obsolete in its pretention that a problem is solved, since the true problem is the question of integrity. An example of legislation that regulates apparent problems are the provisions with respect to the temporary reproduction.14 There does not seem to be one all-embracing explanation for this phantom legislation. It is possible to point to different causes. In the first place, it takes time before new technology is assimilated in society and can be evaluated on its own merits. The figure below illustrates our presumption that the assimilation process of new technology roughly passes through four phases.

Assimilation of  technology in  society 

Society;   Business;  Individuals: 

States;  The law;  Politicians 

Fear 

Acceptance 

Recognition 

Vision 

Oppose it/  ignore it/  avoid it 

Accept it/  indifference 

Support/  facilitate it 

Integrate it/  make it part of  your work 

Regulate it 

Deregulate it  subsidize/  reward it 

Incorporate  the normative  impact of  technology 

Forbid it 

Fig. 1: Assimilation of technology in society 

Secondly, this unfamiliarity with new technology is reflected in the way that legal concepts, which are in themselves familiar, are applied. A good example are the problems lawyers have encountered concerning the legal status of electronic data files. Although electricity, electromagnetism and energy have long been the object of study for physicists, lawyers often have a dissenting opinion as to what constitutes physical characteristics. This is surprising, as the difference between tangible and intangible corresponds rather satisfactorily to 14 There are also situations in which information technology makes legislation obsolete. It is not discussed in this paper, but examples are regulations concerning cookies and spam, decryption obligations imposed upon network providers, and legal measures against ‘home-copying’.

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that between goods and rights. Rights are, just as ideas and notions, not tangible. However, when ideas and notions take form in goods, then the products of those ideas and notions are tangible. That applies equally to information. If information can be described as the intangible interpretation of data, then data cannot be described in any other way than as the tangible patterns which contain the information. Nor does legal dogma stand in the way of categorising electronic data files as goods. Moreover, the status of data files as goods, which naturally arises from these tangible patterns, serves a social goal, just as this is the case with, for example, cars and bridges. Combining both explanations, the assimilation of technology in society and the application of legal concepts, shows that computer data are ‘goods’, legally; because of the computer technology data have become individualizable, and controllable by men, which are the legal dogmatic requirements for ‘goods’. A third important explanation is that technological developments lead to greater social complexity. This is particularly evident with the phenomenon that has been called globalisation. It seems to be a given that we now are involved in multiple, many faceted and therefore increasingly complex relationships. These raise new issues to which no one simple answer seems to be available. The world around us is changing quickly, which demands a great deal from our ability to adapt.

Challenges ahead Looking back over the past twenty-five years, information technology was seized upon by legislative bodies and international organizations to create numerous new laws and regulations. This development contrasts strongly with the often-heard complaint that the law can’t keep up with the new technology. In retrospect, however, one would have wished there had been some truth in the complaint. Taking into account the presumed process of assimilation of technology in society, it hardly comes as a surprise to find that most legislation seems to originate from fear. Whereas the EU was voicing concerns about e-commerce back in 2000,15 for example, today traditional shops selling books, records, audio/video equipment, fridges and washing machines are struggling with the growth of Internet shopping. In practice, people have become familiar very quickly with carrying out commerce in a new way. As for businesses, there are new chances and new business models. The entertainment industry, for example, is not about to crash. On the contrary, the entertainment industry is growing, due to the Internet, even though innovations may have made some areas obsolete, like the sale of music CDs. But isn’t that what innovation essentially is about? 15

And distance selling as well, in 1997.

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Today’s concerns seem to be, a.o., ‘cloud computing’ and ‘social media’. Euro commissioner for the Digital Agenda, Neelie Kroes, worries about social media and calls on companies that have not yet signed up to the EU’s Safer Networking Principles “to do so without delay so as to ensure our children’s safety”.16 Another concern she shares with many others is that through cloud computing we risk losing control over our data, which endangers the fundamental right of the protection of personal data.17 Lessons learned, however, rather than firing up on incidents, it might be fruitful trying to position these incidents into the greater picture that is constituted by the ‘information society’. As the ability of machines to interpret data can be seen as the essential technological foundation for the realization of the information society, globalization can be considered to be the most significant social consequence of the information society. ‘Cloud computing’ and ‘social media’ are symptoms of both the radical technological innovation and the social change. The legal issues relate to this technological characterization of automatic data interpretation of machines, as well as to that inevitable social development we call globalization. Looking back further than the past twenty-five years, there might be lessons learned from the forming of the ‘industrial society’. From the technological perspective, the industrial revolution can be characterized by the ability of machines to perform labour, through the implementation of an energy source. Comparing the industrial revolution with the information society, some similarities come to the fore. Social consequences of the industrial revolution were mobility and urbanisation, those of the information society are globalization and telework. Both eras require amendments to labour law and to social security legislation. Although next to the existing ‘property regime’ no ‘energy regime’ was needed then, as no ‘digital data regime’ is needed today, ownership, exploitation, transfer, access and security with respect to energy sources was needed to be regulated in the industrial society. In the present-day information society the very same issues need to be regulated with respect to the infrastructure. A particular outcome of the industrial revolution enabled by the energy source was the ‘production society’. A particular outcome of the information society enabled by the data interpretation feature will be, or is, the ‘surveillance society’. Among other, both types of society offer an arena for a battle between the abuse of market power and innovation. To avoid the pitfall of first-phase, fear-driven legislation, a more rational approach to technology is required. Lawyers and legislators should not rush ahead to deal with new technologies that they do not, or do not entirely, 16

Http://ec.europa.eu/unitedkingdom/press/press_releases/2011/pr1140_en.htm. Http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/686&format=HTML&aged=0& language=EN&guiLanguage=en.

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understand, nor with the consequential social developments, without a comprehensive view. It is expected of lawyers that they will not ‘rush in where angels fear to tread’, but rather that they will take the time to contemplate these new issues.

Conclusion: The New School of Law and Technology Given the above, it can be argued that governments, companies and lawyers would be wise to reconsider their attitudes towards new technology. With respect to governments, it is suggested that a more restrained approach would be appropriate. Legal concepts become antiquated less quickly than legislators have realized. Time and money have been wasted in pointless changes to laws and setting up whole new regimes to deal with data, whereas the existing laws were already perfectly adequate for the purpose. The issues that deserve more governmental focus are the social and economic issues that arise from new technology, rather than technical or legal concepts. Setting out a new course on issues like ‘social media’ and ‘cloud computing’, – the ‘concerns’ mentioned above – certainly would be a step in the right direction. In the light of the concerns expressed above, what should be worrying is the direction of the legal measures. Sanctioning, e.g., a three-strikes-you’re-out regime instead of embedding a right to connect in the constitution, can’t possibly be seen as being in line with the needs of the information society. It is a measure to support the victims of a disruptive innovation, of a creative destruction. It is a managerial reflex to an existential threat. It is pointless, however, since the new development is inevitable. Another problem that one should worry about, is that politicians and policy makers seem to lack a clear and explicit criterion to base their decisions on. A consequence of that may be an uncoordinated, random decision pattern. In the debate concerning public safety, for example, it is often heard that safety mustn’t be too much at the cost of privacy protection. But this argument is, in fact, never followed by an explanation how to determine when that will or might be the case. This leaves the outcome of the weighing wide-open, unpredictable and insecure. And the fundamental legal principles of motives, of transparency and of accountability will not be met. Instead of bargaining about the level of privacy protection, a more fundamental choice needs to be made. Basically there are two possible approaches to dealing with new developments. If one isn’t sufficiently aware of the different nature of the new developments, it is likely to take an approach trying to have the developments fit in the existing normative framework. Such an approach will probably produce the point of view that, e.g., the use of surveillance technology may be allowed, but not at the cost of the right to privacy. It is clear that this approach will almost certainly lead to insoluble dilemmas. A more suitable

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approach would be to take into account the fact that new technology has a normative impact and that we have to reconsider the existing normative frameworks. This is difficult, since it means that we have to reconsider social and legal frameworks we have grown up with, that we have become familiar with and that shaped our worldview. In our example of surveillance technology we might very well experience a shift in the privacy concept, to the extent that privacy protection that once was needed to support our safety, now may stand in the way of a more efficient and effective protection of our safety, given the new technical possibilities. Since there now seem to be more interests to take into account, the direction to choose should be the one that appears to be the most beneficial. This means that for facing the challenges ahead we can’t simply rely on a managerial approach. What is needed firstly is the development of a vision.

New School   of Law and  Technology 

Rationality  (management) 

Vision  (leadership) 

Law 

Social function  of law 

Normative  impact of  technology 

Technology 

Social function  of technology 

Innovation 

Fig. 2: The New School of Law and Technology 

In figure 2 we mean to emphasize that, just like law, technology also has a social function. Technology, like law, must be useful and beneficial, and to give shape to this social function a rational approach is required. In facing new challenges, however, a rational approach will leave us empty-handed, simply because the road ahead is not yet determined. It is precisely that area where we should fear for the managerial reflex, neglecting the new opportunities. Since technology continuously develops through innovation, the normative impact of technology should be taken into account in the development of the law.

Epilogue All concepts in this essay, like the assimilation of technology, the ‘New School’ idea, the normative impact of technology, are the results of the joint efforts and collaboration of Richard, Kees and me. And, naturally, they bear fruit of many others, the ones we were conscious of in acknowledgement, the others in

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appreciation. The wide scientific interests of Richard, together with his innovative attitude and curiosity, were indispensable in shaping such a multidisciplinary environment.

References Gubby 2011 Helen Gubby, Developing a legal paradigm for patents, (diss.), Rotterdam: Erasmus University 2011. Samuelson 1991 P. Samuelson, ‘Is information property? (legally speaking)’, Communications of the ACM, March 1991 v34 n3, p. 15 (4), http:// www.ifla.org/documents/infopol/copyright/samp6.txt.