Pearce IP litigation head: 'No one's died because of technology yet'

Paul Johns has had a long career in IP litigation, during which time he’s seen a lot of interesting things. Last week, he talked to NZ Lawyer about making the transition to Pearce IP after a storied career at AJ Park; in the second part of this interview, he tells us about a case featuring family drama, and about making music with ChatGPT’s help.

Can you tell us about a particularly memorable case or matter that you worked on while at AJ Park/Baldwins?

Always an interesting question for a litigator because sometimes, the best ones are the ones you can't talk about – because of the way they settled or they're still ongoing. I think the case that perhaps I refer back to the most and think about the most and talk about the most was one that actually was well underway when I joined Baldwins and that I then took over and took to trial.

That case had a number of interesting aspects to it, but the one that really makes it stand out as an industrial copyright case is that it was actually a father, quite an elderly man at that point, who had been left no option but to sue his own son for copyright infringement – copying and selling as competition the same sort of farm machinery that had been developed by our client. One of the good things about practicing in IP is it does have a certain emotional element to it – not as much as perhaps criminal or family or even employment law – but enough to make it more than just a dollars-and-cents exercise for the clients. There's something of themselves, and to deal with someone who had to make that pretty hard decision and see it through to victory was challenging for me. I can't imagine how it was for him or for his son who had to finally face reality – that is, his dad was going to draw a line in the sand eventually (maybe should have done it when he was 14 instead of 44).

But I learned a lot from that case and worked with good people on it. The legal issues were not particularly out of the ordinary, but the factual issues are very complicated – we're dealing with issues that are now becoming quite prevalent in terms of preservation of data. This case involved electronic designs, and our client was one of the very first people to start using electronic design software. The file formats were no longer readable at all as far as I could tell, and the other side initially didn't believe me when I told them that. I said, well, here are the files – I can tell you the name of the program we use. But unless you've got the actual machine was written on, it won't run because it was bespoke to one machine. And that's how things were. And that's an issue that you're going to see more and more as digital obsolescence.

What are your thoughts on AI and its impact on IP?

I had a very interesting discussion with someone who's a very keen (though not famous) amateur musician. They do records and release music at a fairly low level, but they're very into it. They said, “here's my new album, that took me hours and hours and hours of work.” And I said, “Well, here's a song that took me five minutes to generate using ChatGPT and a music generating AI.”

And it's a perfectly nice pop song that took me really no effort at all. So for the creative industries, they got some real problems. And it's not just them – I think there's been a lot of talk about how AI is going to take lawyers’ jobs, or particularly in IP, where they're asked some low hanging fruit with respect to things like drafting trade marks specifications. There's a wealth of training data, a limited set of output possible that seems ripe for the taking.

But my view is going to be, like any other technology, AI is not going to take anyone's job – it's going to be a new tool for the job. And if you don't learn to use the tools effectively, then people will go elsewhere, because you won't be as competitive with it. It’s happened before – we don’t have rooms full of clerks hand copying letters anymore. We have voice recognition software and telecommunications. We no longer send a letter and wait a week for the response. We don't need to send a fax and wait a day for the response. We send an email and people respond within an hour. If you were still relying on typists and post and fax machines now, you wouldn't have a practice. And the same will be true in 5-10 years’ time: if you have not embraced AI as a work tool – not as a replacement for employees, but as a work tool – then you won't have a business.

So on the one hand, it will change everything. On the other hand, it won't be as big a deal as people think to adapt. At the very start of my career as a summer clerk at Russell McVeagh. They had only just put a PC on every desk – that must have been in 2000. So the whole idea of writing your own emails rather than having your secretary type your email for you was new. And having the internet at your fingertips, available for use and misuse, was all new. And it turned out that no one lost their jobs and no one's died because of technology yet. So I think the profession will survive. It'll just have to change its shape a wee bit.

In the final part of this interview, Johns discusses how legislation in New Zealand is coping with the fast-moving tech of today, and what the future looks like for him.