Taking IP law to the next level

The world sees a lot of Professor Mark Bartholomew. In addition to copious publications including law review articles, book chapters and books (his latest is Intellectual Property and the Brain: How Neuroscience Will Reshape Legal Protection for Creations of the Mind, from Cambridge University Press), he writes pieces for the popular press, presents at conferences far and wide, and is called upon often by journalists for his expertise in intellectual property issues.

Bartholomew, a popular teacher who has twice won the student-voted Faculty Award and received the SUNY Chancellor’s Award for Excellence in Teaching, has followed his scholarly curiosity to explore innovative aspects of legal thought. These include how law intersects with new technologies, such as artificial intelligence, and aspects of IP law in the fashion and advertising industries.

UB Law Links asked him what’s been on his mind lately.

Your new article, forthcoming in the California Law Review, is titled, “A Right to be Left Dead.” Um, hasn’t the Grim Reaper already taken care of that?

You would think so, but artificial intelligence is starting to make the boundary between life and death more porous. Entrepreneurs are already marketing chatbots that can channel lost loved ones into our smart speakers, and long-gone actors now reappear in new roles. In general, my scholarship investigates how new technologies shake up existing legal assumptions and categories. This particular article examines how different legal regimes treat the circumstance of death and asks whether those regimes need to be adjusted for a future where people can be made to say words they never said or appear in places they have never been. One takeaway is that our legal system has already put a great deal of thought into what should be the legal consequence of death. These already existing insights should be integrated into any new laws creating postmortem rights in the identities of the dead.

 Artificial intelligence seems to have taken the tech world by storm. How do you see AI intersecting with copyright law?

AI is putting two key categories in copyright law—“authors” and “fair use”—under a legal stress test. AI complicates authorship by allowing for new creative works to be produced with no or very little human intervention. This leads to questions about how much human interaction with a generative AI platform should be required before an award of copyright. Meanwhile, the whole edifice of several billion-dollar generative AI companies is at stake in cases now proceeding through the courts. A diverse series of plaintiffs—from comedian Sarah Silverman to the company that owns Westlaw—contend that the unauthorized use of their copyrighted content as raw material for AI training is infringement. The AI companies argue fair use. In my copyright class, I explain to students how Supreme Court cases involving the VCR and online file sharing not only changed the law but also fundamentally altered the business models of major industries. This seems like another one of those important legal forks in the road.

 Your recent scholarship has explored neuroscience as a tool for interrogating intellectual property law. Can this tool make the application of IP law more fair or more precise?

I think it can. I’m not always a techno-optimist, but as I have learned more about neuroscience, I have become more convinced that it can improve our decisions about what should and should not be protectable in IP law. Patent, copyright and trademark law often hinge on a judge or jury’s best estimate of the thought processes of one of three groups—creators, audiences and consumers. It turns out that these estimates often rely on flawed assumptions. Take trademark law, which requires an assessment of whether the average consumer would find the defendant’s conduct confusing. This is not easy to figure out, and assessments of confusion are notoriously imprecise. In a recent experiment, I and a group of co-authors with expertise in neuroscience showed participants product images while using fMRI (functional magnetic resonance imaging) to scan their brain activity. The experiment diagnosed neural benchmarks for visual similarity, potentially offering a new resource for evaluating consumer confusion. Neuroscience doesn’t have all the answers, but a better understanding of the biology of human thought can help construct a more accurate vision of intellectual property law.

You are a co-principal investigator of a new National Science Foundation-funded project that seeks to foster the development of cybersecurity professionals. What can law bring to that project?

The grant brings $3.4 million in funds to UB as part of a nationwide push to build greater capacity in the federal government, specifically with students trained in the cybersecurity field. The program, called Cybercorps: SFS, supplies scholarships to students who follow a specified curriculum; in return, these students work for a federal agency after graduation. An increasing number of legal requirements are becoming part of the cybersecurity backdrop. Lawyers have to navigate a larger and larger array of state and federal mandates for securing data and protecting workers and consumers from cybercrime. And even for students in the program who will never earn a JD, I think it is useful to be exposed to some of the bodies of law—intellectual property, online privacy, consumer protection—that wrestle with the appropriate level of regulatory intervention when it comes to safeguarding digital spaces.

 You’ve become a go-to source for media inquiries about some pretty complex topics. Is it hard to convey the nuances of an issue when journalists are looking for a pithy quote or quick sound bite?

Shoehorning expression into a haiku or iambic pentameter limits what you can say, but following those conventions can also generate something particularly powerful or compelling for audiences. For me, the same applies when it comes to articulating legal perspectives for media outlets. I’m not sure if I always get the balance right, but I find that the challenge of conveying complex legal arguments in short form generates its own creative positives. I think this holds true for writing op-eds as well. Ones that I recently wrote on social media regulation and using dead actors in film have helped me get my work read by a larger audience beyond scholars and legal professionals.