World Intellectual Property Day 2021 shines a light on the critical role of small and medium-sized enterprises in the economy and how they can use intellectual property (‘IP’) rights to build stronger, more competitive and resilient businesses.
We spoke to Sydney Law School's Professor Kimberlee Weatherall, a Chief Investigator with the new ARC Centre of Excellence for Automated Decision-Making and Society (ADM+S) who specialises in the relationship between law and technology and intellectual property.
Currently I’m spending a lot of time with the data scientists at the Gradient Institute, and other collaborators trying to work out how to translate legal concepts like fairness when building data analytics and automated decision-making systems. We’re also trying to understand what legal systems require from decision-making systems in terms of how comprehensible they are to people affected by those decisions, or to judges — and then whether we can meet those requirements in real world technical systems.
It’s challenging and interesting to bring together the language and the thinking of law and maths.
We spend a lot of time discussing what is quantifiable, and what should or shouldn’t be automated.
There are certainly challenges, but the question isn’t black and white.
The idea that new technologies are ‘unregulated’ has always been a myth.
The challenge is always to distinguish between laws that assume a certain technological world and need updating when that world changes — and those that are based on more long-lasting principles.
I spent several years critiquing Australia’s approach to negotiating IP chapters in trade agreements, for example, on the basis that they were embedding, even in agreements negotiated in 2018, IP laws written with the technology of 1998 in mind.
Other rules we have, however, have always been focused more on principle or higher-level obligations, and are capable of being applied to new technologies. Witness, for example, the ways that consumer protection laws have been applied recently to the data gathering activities of, say, Google — finding that Google had breached obligations not to mislead or deceive consumers in the way it framed its privacy policies and privacy choices.
Oh, we had all kinds of ideas! In my chapter, I tried to imagine what copyright enforcement would look like if we handed it all over to a public regulator, rather than focusing entirely on private litigation. It wasn’t obvious that the lawsuits would look the same!
Today I think I and others are more interested in working out where the flexibility is in the treaty system (if suggesting law reform) — or how we can deal, practically, with the rights that we have to achieve better outcomes. For example, can we make it easier for academics to deal with their copyright in order to enable better public access to the results of publicly-funded research? That and related questions are something I’m thinking a lot about in a current ARC-funded project on how we manage university IP.
There have been some wonderful books published over the last couple of years tackling big questions at the intersection of law, philosophy and technology. I’ve just finished Re-Engineering Humanity by Brett Frischmann and Evan Selinger — a philosophical/technology/law look at how new technologies re-shape us.
There’s also Kate Crawford’s The Atlas of AI: Power, Politics, and the Planetary Costs of Artificial Intelligence and Frank Pasquale’s New Laws of Robotics: Defending Human Expertise in the Age of AI.
My reading list has been very tech-focused recently, but over the holidays I finally read Dark Emu by Bruce Pascoe, and for fun I have The Dictionary of Lost Words by Pip Williams.
Professor Kimberlee Weatherall is a Professor of Law at the University of Sydney Law School and a Chief Investigator with the ARC Centre of Excellence for Automated Decision-Making and Society.
Kimberlee specialises in issues at the intersection of law and technology, as well as intellectual property law. She works with researchers in law, data science and media studies on questions relating to AI ethics and legality, data and data governance.