HTLI: Legal Experts Examine 50 Years of Change in Intellectual Property Law in the Digital Age

A Q&A with Tyler Ochoa

Campus Technology asks Tyler Ochoa, a professor of law at Santa Clara University’s School of Law, about a day-long event, Intellectual Property Law: How it Started, How It’s Going, to be held at Santa Clara University on Jan. 30. Offered by SCU’s High Tech Law Institute, the event will convene legal experts on intellectual property and IP law to consider the past 50 years and the future of IP in the digital age.

 

Mary Grush: You’re an expert in copyright law and a moderator and conference organizer for HTLI’s event on January 30. How did the conference themes take shape? And what are a few of the issues panelists might choose to discuss?

Tyler Ochoa: We started out by noting that next year, 2026, is the 50th anniversary of the 1976 Copyright Act, which is an important development in intellectual property law. And it turns out it’s also the 80th anniversary of the federal Trademark Act of 1946. It’s the 10th anniversary of the Defend Trade Secrets Act. And it’s one year short of the 75th anniversary of the Patent Act. While they don’t line up precisely, we noticed all of these anniversaries converging. So, we thought we would broaden our topic — so as not to limit ourselves to copyright law, but to ask what, in general, has been happening in intellectual property law in the past several decades.

We asked our speakers to address four main themes very broadly. We’re not asking them to pick particular topics ahead of the conference, but to surprise us as the conference unfolds. So HTLI conference participants and speakers will look at copyright, at trademark, at patent law, and at trade secret law through the lens of what’s happened in these four areas in the past 50 years or so.

We’re asking: How did these laws develop? How did they come to be? What’s been going well? What’s gone right? In what ways have intellectual property laws contributed to the development of technology and culture? And what’s gone wrong? In what ways have the laws not succeeded or have created problems that might not otherwise have existed? And then to look forward, to the future…

Grush: What kinds of aspects of copyright law — one of the four main conference themes — might be considered?

Ochoa: In copyright law, I think there have been three very important developments that have fundamentally changed how copyright law has been shaped.

One is the widespread adoption of personal computers beginning in the 1980s. Suddenly, everybody has a means of replicating copyrighted works very cheaply and easily, right at their fingertips. And software becomes an important subject of copyright law in ways that had not existed before.

So, we have to address what aspects of software are protected by copyright, what aspects of software are not protected by copyright, and how we deal with the fact that computers operate only by copying data into their dynamic memory. Every operation you do with a computer starts with a potential act of reproduction, because the data has to be copied into the memory of the computer in order to work with it.

The second development is the commercial development of the Internet in the mid-1990s. The Internet as a research project goes back to the 1960s, so there were computer science researchers working with the Internet before that. But beginning in the 1990s, the Internet gets thrown open to everyone. And so now you have a means of distributing copyrighted works easily, worldwide. It provides both new opportunities for distributing copyrighted works very cheaply and easily in digital form rather than in the form of print, as well as [on the darker side] a new means for unauthorized copying, or piracy, on a worldwide scale.