Leveraging Knowledge Assets: Can Law Reform Help?

Abstract

This paper asks whether there is a need for lawmakers to aid in the efficient transition to a new knowledge-based economic and social environment through the use of intellectual property devices. The use of such devices was effective in assisting with the transition to an industrial society that, combined with developments in commercial law and secured transactions, further fuelled economic growth in Canada. Can these disparate areas of law be brought together to provide opportunities for the growth of knowledge-based business? The Law Commission of Canada instigated a two-part investigation into these questions. The investigation culminated in the Commission's report Leveraging Knowledge Assets: Reducing Uncertainty for Security Interests in Intellectual Property (2004). This article describes the process of the investigation undertaken by the Commission and more particularly describes the results of the first branch of the enquiry, which was a three-part empirical study seeking to establish whether legal intervention into harmonizing the law of secured transactions and intellectual property law is warranted from the business perspective. Results of the first empirical branch of the enquiry, a pilot survey of business people and their legal advisors, the second branch, a national teleconference consulting business leaders, and the third branch, a feedback consultation session with conference attendees, are reported against the backdrop of the Commission's subsequent report. It appears that the traditional devices of intellectual property are not adequately serving emerging business needs around knowledge assets. However, it seems to be too simplistic to characterize these inadequacies as exclusively, or even directly, related to the relationship between the law of secured transactions and intellectual property devices. Reactions from study participants in business suggest caution in undertaking law reform in this area – cognizant, from a business perspective, of the possible implications of changing the current balancing of interests in the knowledge-based business sector. The Law Commission's report may serve as a catalyst for an emerging dialogue between legal experts from different fields of law but further direct consultation with the business community they serve appears to be necessary before changes are implemented.