Anthony Doesburg: Good law better than fast law, says US expert

By Anthony Doesburg

Lawyer applauds NZ's cautious legal response to tech developments.

Politicians who are inclined to pass another law each time new technology tests existing legislation should resist the temptation.

That's the view of Jeffrey Matsuura, an American lawyer with decades of experience of technology-related issues who is studying New Zealand's legislative response to technological change.

Once he is familiar with our methods, he'll compare us with the United States, Canada and other countries and try to draw up a manual of best practice.

So far, from his temporary vantage point in the University of Otago's Centre for Law and Policy in Emerging Technologies, he approves of what he sees.

"I believe New Zealand has been willing to be a little more careful about enacting laws and regulations aimed specifically at new technologies or applications. I think that's a better way to err.

"I'm more afraid of a legal system that dashes off new laws really fast than of one that says, 'Let's look at this a little longer."'

Matsuura cites the ban former President George W. Bush slapped on federal funding for stem-cell research as the worst US example of law-making on the hoof.

"For purely political reasons a major roadblock was put in the way of researchers in a very interesting and important field of research.

"I thought it was outrageous."

In that instance the President was in the thrall of conservative religious groups. On other occasions it's commercial interests - such as music and movie distributors with copyright control on their minds - that bend the ears of politicians to promote laws that suit them.

Information and communications technology, which "is in the middle of everything", brings particular pressure to bear on existing laws, Matsuura says.

"Another cluster would have to be health and medical technologies, largely because it's so important to everybody."

Icann, the US-based internet governing body headed by Kiwi lawyer Peter Dengate Thrush, runs along lines Matsuura agrees with. As a largely independent and neutral oversight body that consults exhaustively with the international internet community, it could be a model for regulation of other technology sectors.

"It is almost a form of self-policing ... enforced by contracts." In legal circles, says Matsuura, a former lawyer for MCI Communications and the Discovery Channel, Icann provokes some head-shaking.

"They have to acknowledge that it has been effective, but I think a lot of folks in the legal community get worried when they can't see a clear lineage of formal authority." Yet he thinks that is what makes the domain name dispute resolution system, for which Icann wrote the rules, so successful.

"There is no way that a formal legal structure would have set up or tolerated that kind of system. But in my view that piece of Icann's heritage has worked really well."

But national security concerns - such as a government's desire to stifle internet-borne dissent, as in the Middle East, or to extinguish an outbreak of cyber warfare - could see control wrested from Icann.

"When you start talking about what a nation perceives as its security interests, that ratchets up the discussion to a level where there will be an enormous amount of pressure for formal involvement by governments."

Should that happen, wider society and big business could find themselves on the same side for once in resisting government controls on the internet.

"A lot of the bigger commercial interests wouldn't be keen on having the internet too formally regulated. I think they are quite comfortable with the situation as it is," Matsuura says.

If the New Zealand Parliament stays on course to pass a new patent law that excludes computer software, it will get his thumbs-up. "I'm not a big fan of software patents," says Matsuura, author of several books on legal issues relating to data networking, nanotechnology, e-commerce and patents.

"The breadth of coverage that they offer - which is why, if you can get them, you'd want a patent - is just too disruptive for an industry like software where the nature of the product, of the work to create it, is just too collaborative.

"It is too difficult to allow that kind of broad proprietary control that patents give somebody."

It's doubtful that Matsuura, who returns to the US at the end of the month, will get to witness the fate of the Patents Bill from up close.

As if to prove his point that New Zealand lawmakers react judiciously to new technologies, the two-year-old bill was stuck in a legislative log-jam this week, awaiting its second reading in Parliament.

There are always exceptions, however. Opponents of the Telecommunications (TSO, Broadband, and Other Matters) Amendment Bill, introduced to the House in November, yet set to overtake the Patents Bill, say it is being rammed through with indecent haste.

But that's another story.

Software excluded?

* "A computer program is not a patentable invention", says the Patents Bill, as reported back from the commerce select committee.

* Why not? Among other reasons, the committee says patenting software is inconsistent with the open source model, can stifle innovation and competition and anyway, new software invariably builds on existing software.

* However, the committee expects patents will still be granted for inventions that contain "embedded software".

Anthony Doesburg is an Auckland technology journalist

- NZ Herald

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