Teaching IP

30 June 2020

Teaching IP

Lawyers often think about intellectual property education in terms of their classes in law school. But there’s a movement afoot to introduce IP education at all levels, from primary school to well after one has finished formal schooling. Espie Angelica A. de Leon reports.

This much we know: The growth of innovations is moving at an incredible speed.

New gadgets carrying revolutionary features constantly spring up in the market. Among these are the ubiquitous smartphones. This “smartness” does not only reside in 21st century mobile phones. “Smartness” has also found its way into TVs, cars, watches, homes and buildings.

Along with them comes a slew of software solutions designed to perform anything from creating graphics to managing documents, inventory and systems. 

Shopping and banking have also become smarter, thanks to the rise of apps and e-commerce. Not only have they made transacting and purchasing easier; these platforms also allow people to create and share content more easily. 

These being said, are people even aware that these technological advancements are linked to intellectual property? Firstly, how much do we know about intellectual property? 

According to some lawyers, it isn’t just the lawyers who need to be educated.

 

Who should learn IP?

Who should learn IP? Everyone, not just law students.

This means engineers, journalists, authors, musicians, artists, accountants, tax persons, university researchers, librarians, farmers, indigenous communities, those in business and economics, medicine, marketing, advertising, pharmacy, agricultural science, political science and others and those who will foray into these fields of specializations should learn about IP.

According to Franck Fougere, managing partner at Ananda IP in Bangkok and tutor/reviewer at the World Intellectual Property Organization’s distance learning programmes, accountants and tax people should learn about IP for valuation and tax implications of royalties. These are part and parcel of IP.

Customs officials, enforcement authorities and judges should have sufficient knowledge of regulations as well, especially those in jurisdictions with reinforced IP legal systems. The knowledge will serve them well as IP cases around the world become more complicated. 

Manh Hung Tran, country managing partner of BMVN in Hanoi, a member firm of Baker McKenzie in Hanoi and a visiting IP lecturer at Vietnam’s law schools, says it is important for people in these jobs or aspiring to be in these fields to learn about IP so they’ll know how to protect their creations and innovations from infringement. A good knowledge of IP will also help build their reputation, maximize the economic benefits of their assets and enable them to keep up with the innovative trends of a constantly evolving society.

 

“IP is around us. It’s everywhere in our daily lives especially in this internet age when everyone can be both creators and users of IP,” says Kenny Wong, counsel at Hogan Lovells in Hong Kong and adjunct associate professor at the University of Hong Kong.

William Giltinan, an attorney-at-law at Carlton Fields in Tampa, Florida, and patent law professor at Stetson University College of Law in Gulfport, Florida, says knowledge of IP can also benefit another group of students.

“A discussion of intellectual property issues relating to ancient works is also helpful for history, archaeology and museum studies students. Sociology students can benefit from lectures on intellectual property relating to cultural patrimony,” he says. 

According to Gaston Kroub, a partner at Markman Advisors in New York and teacher of an IP elective course at the Yeshivah of Flatbush High School in Brooklyn, as the global economy transitions from being industrial based to being knowledge based, familiarity with IP concepts and issues is critical for all students. 

“More companies, irrespective of their industries, should work with their internal or outside counsel to develop IP literacy courses for employees,” says Kroub. “Those courses can focus on issues that the company has faced or just generally used to encourage innovative thinking at the company.”

 

When should learning begin?

“IP is a sophisticated and difficult subject. Whereas students should learn to appreciate and respect the value of IP beginning in pre-college years, the nuances of the subject are better learned initially in college,” says Giltinan, “and in detail in graduate school.”

“In our opinion, IP and IP laws should be taught starting from college,” says Tran. “Nevertheless, a general introduction of IP can be offered to students of lower education levels in a simple form, which serves mainly for the purpose of raising awareness on IP and IP infringement.”

For Wong, IP education should begin in primary school.

 

“Primary school students now play games, listen to music, watch videos and share pictures and data online. Clearly, IP should be taught at a young age and should start from primary school. Please understand that we are not aiming to teach primary or secondary school students to become IP lawyers,” says Wong. “You teach them what and why they can use some IP freely, what IP they have to pay for or need consent and why they should not endorse or deal with counterfeits and how they can protect the IP they themselves create. I think this goes hand in hand with teaching children digital citizenship at a young age.”

Irene Calboli, a professor of law at the Texas A&M University School of Law in Fort Worth and visiting professor at the Nanyang Business School, Nanyang Technological University, in Singapore, suggests teaching kids first about innovation and experiments. Next, teach them how these are linked with law and then teach them about law. Later on when some of them actually go on to law school, they should be taught about law in more detailed form. 

“In middle school, teachers can incorporate IP discussion into social studies classes,” says Kroub, “perhaps by discussing the IP component of major current events – e.g. why the patent rights will be important for companies investing in a coronavirus vaccine.”

By the time they reach high school, Kroub says, students are readyfor an elective course. 

 

Methodology

“The move towards online learning is in my view unstoppable. Some of my best students in the past were professionals and mature age students studying a course completely online. A combination of online teaching and small face-to-face seminars for discussions seems to work well,” says Christoph Antons, a researcher and professor on the Faculty of Business and Law at Newcastle Law School, University of Newcastle, north of Sydney.

“Yes, online courses are the best and not only in times of coronavirus,” says Fougere. “They allow for progressive learning and are compatible with other work obligations.”

What can be problematic, though, is that since students are more relaxed under an online learning setup, they can also be more easily distracted. Hence, Wong believes that teachers of online modules should design their courses differently from those of a traditional classroom-type setting. The courses should be more engaging and get the students to be involved throughout the discussion. 

Calboli prefers face to face lectures or hybrid courses to an online environment. For her, nothing can replace the human touch associated with face to face interaction.

 

“Traditional lectures and in-class exercises can be quite effective for law students, while non-law students seem to benefit from additional case studies and team exercises built in as part of the course,” she says. “Flipped classes – where students watch the lecture part of the classes on tape before class and the class face-to-face time is reserved for questions and discussion – can also be very effective. For law students, clinical training in IP is also crucial as this allows the students to practice as lawyers under the supervision of experienced lawyers and assist real generally low-income clients.”

Notwithstanding the fact that choice of methodology is based on target audience – whether they are full-time or part-time students, residing locally or overseas and other considerations – both modalities may be beneficial, says Tran. But whatever it is, classroom or online, he suggests the inclusion of on-the-job training opportunities, mock trials and interactive sessions.

“Students cannot fully understand the laws by only reading the statute or regulations,” explains Tran, “they need to read and discuss real cases to see how the judges interpret the laws and apply them in practice.”

 

Syllabus for law students

“A syllabus for a general and introductory class on IP law should include four parts in my view,” says Calboli.

These are:

  • How to acquire IP rights, that is, the registration process for trademarks, patents and designs, and the instances of non-registration-based protection, notably for trade secrets, in common law or use-based trademarks, and copyrights;
  • How to enforce IP rights, that is, the basic rules related to infringement (and dilution in the case of marks);
  • The exceptions and limitations to the enforcement of the right; and
  • The transactional part of IP rights, that is, assignments, licensing, securities, etc., largely based on contract principles.

Within the context of digital transformation, the lines distinguishing IP and other types of property become blurry, according to Tran. Thus, he believes the basic syllabus should also tackle the differences between them.  It should offer discussions on the importance and application of the IP law in real life and why IP is not just a local concern but an international issue. 

 

Aside from these and the overview of corresponding laws, international treaties, national systems for IP protection focusing on China, the United States and Europe, and other fields of IP, lawyers say the following topics are also essential to the study of IP law:

  • IP and development, 
  • The role of IP in cross-border business disputes, 
  • Case studies, and
  • A critical review of how rights have evolved and whether past assumptions, economic theories, legal philosophies, government policies and public expectations still hold today. Wong believes this will equip the students with critical thinking ability, a required skill in the exercise of reforming IP laws.

“Law schools with a strong interest in IP offer separate courses for the individual fields of IP in addition to specialized courses at the intersection of other fields of law such as IP and human rights or IP and competition law, or focusing on a particular field of technology, such as IP and biotechnology,” says Antons.

“If the courses are more practical rather than academic, mandatory first-hand trainings or internship may also be included,” says Tran.

 

Syllabus for non-law students

IP should not be taught to non-law students as if they were to become IP lawyers,” says Wong. “I have seen syllabuses fail because of that.”

It is also worth mentioning that the syllabus for engineering students differs from the one for business management students. And the IP syllabus for business majors differ from that for journalism and so on.

While this is true, Tran believes a general subject such as “An Overview of Intellectual Property Law and Practice” should be offered to students with no intention to proceed to law school. 

“Then, based on the students’ needs and interests, different advanced courses may be offered as selective subjects. For example, engineering students may want to focus more on patents, industrial designs and trade secrets while IT students and journalism students might be interested in copyright,” Tran explains.

 

“What is crucial for a non-law student syllabus is to offer direct examples of how IP applies to their field. Thus, case studies, exercises related to product developments and IP-related issues are crucial for these students to have a better understanding of the topics and the applications to their disciplines,” says Calboli, who teaches IP basics to engineers, medical students, business strategists, artists and fashion designers.

For Antons, however, a lot of it will depend on the faculty’s available resources.

“One option is to invite experienced IP practitioners to teach the basics with a particular focus on the discipline in question,” he says. “If IP teaching is centralized in a law school, many of the courses could be opened up to students from other faculties.”

This way, interesting interaction between law and non-law students becomes possible in class. One group learns more about IP while the other discovers more details about technology and business practices.

Meanwhile, Fougere mentions the power of case studies in cascading IP information to people from other disciplines.

“Case studies allow non-legal persons to quickly understand the value of IP. The approach of the IPR SME Helpdesk in China and ASEAN is great in this regard. They answer questions about IP directly to the industry,” says Fougere.

 

A future-ready syllabus

As mentioned earlier, innovations are evolving at a remarkable pace, giving birth to new technologies and creating further disruptions. IP should better catch up with these developments and keep in step.

How, then, can a syllabus accommodate this fast-paced growth and become future-ready?

 

“A syllabus shall be updated frequently as indeed IP laws evolve quickly. It is sometimes helpful to dedicate a chapter on emerging issues in the field of IP with information on the latest developments such as AI, 3-D printing, plain packaging, SEPs, etc,” says Fougere.

“In a survey course, one week in each of the individual fields of IP could be devoted to cutting-edge technologies and the latest developments in the field. Ideal would be entire full semester courses examining IP and individual areas of technology that are particularly important,” says Antons.

According to Tran, research projects or theses about how new technologies impact IP laws as well as flexible sessions of workshops, seminars or conferences that will discuss a significant topic will help. 

Meanwhile, Wong says that his proposal for the IP law syllabus to includea critical review of the evolution of IP rights and encourage debates and discussions will help mould students to become proactive. 

“For the past two or three decades when technology made leaps and bounds, our IP laws have only been reactive and the development of the IP laws often lag far behind technological advancements. Besides the time required to discuss, debate and pass IP law amendments, political agendas may interfere or even hijack these efforts,” Wong explains. “We need lawyers, legislators and government who are forward thinking and proactive.”

For Calboli, however, the landscape changes very quickly. Thus, attempting to overspecialize may lead to failure. 

“I think most current curricula are future ready as they include new classes on a general basis every year. An approach with solid general courses and updated teachers and a variety of upper level courses that mirror and anticipate the needs of the marketplace and society in general is the best option,” she explains. “Flexibility should be the key for all these options.” 

 

Where IP is weak: Developing the syllabus 

What about in jurisdictions where laws are not as robust as they should be, understanding of IP is low and its general concept is not thoroughly accepted? How does an academic institution in such a place go about developing its IP syllabus? Where should it begin?

To start with, most national IP laws are based on very similar principles. Additionally, different international standards for IP laws such as TRIPS, the Paris Convention and the Berne Convention are already in place.

“Thus, an academic institution in a country where the concept of IP is not yet mature can design an IP syllabus starting with those principles and international standards,” says Tran. “Then extend and localize the syllabus by building specific topics based on their country's development, current trends and practices, e.g., analysis on how the local laws have and have not met the needs of the country's IP evolution, whether they are suitable with international regulations, or discussion on relevant comparison between national laws and regional or international practice.”

 

“My recommendation for such countries would be to begin with in-depth discussions of the economic and social policies and risks of both protecting and failing to protect intellectual property. Once that foundation has been built, international treaties should be used as the basis for a detailed discussion of the various types of intellectual property. Throughout, the students should be challenged to understand how the choices made in the treaties impact the policy concerns discussed earlier in the course,” says Giltinan.

Calboli sends a reminder though to academe: Situations both within a country and internationally change. In creating the syllabus, these changes should be considered. Hence, while the curriculum should cover general legal principles, it should also be flexible enough to adapt to these changes.

Lawyers add that these countries can seek assistance from international bodies such as WIPO, the International Trademark Association and others. These bodies offer a variety of training material and technical assistance to country officials and academics in developing countries.

 

Desired learning outcomes

“For me, the chief goal of any IP course outside of the law school context is to develop what I call IP literacy – or the ability to identify possible IP issues regardless of the business or social context,” says Kroub. “Moreover, it is impossible to develop IP literacy without also understanding the interconnected global economy, making it that more important a knowledge base for the current and future participants in that economy.”

Aside from this and having the ability to use and apply the laws in real cases, the other desired learning outcomes include:

  • Practical skillsets such as conducting searches, drafting claims, cooperating with enforcement authorities or arguing disputes. Tran says these are the outcomes expected from courses designed to be more practice inclined;
  • The ability to develop an informed opinion about IP policy directions; and
  • Boldness to advocate for fundamental changes and reform if old IP laws are no longer in sync with the modern economy, technology and its future evolution

The world does know a lot about modern technology – from how the latest smartphone functions to the implications of e-commerce to the very concept of 5G. But does it, really? If the majority of us does not grasp the connection between technology and IP, then our knowledge is limited. If only lawyers are equipped to understand this connection, this knowledge is incomplete. A more wholistic approach to IP teaching should do the job. With everyone’s willingness to learn how IP impacts his career and personal life, this knowledge would be more solid and far reaching.


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