The past four decades have been witness to the realization of ideas which, when first contemplated, seemed to resemble the prose of science fiction writers. Some seemingly far-fetched notions, such as robot pets, anti-sleeping pills, and ugly unisex jumpsuits, are now readily available. However, there are currently no colonies on the moon, and we are all still waiting to order our personal jetpacks from Amazon.com. Some are likely to remain in the realm of science fiction and will only be realized with the help of movie and television special effects artists. Yet through these entertaining glimpses into a potential future, we are left to wonder whether the law should be adapted to account for some of these anticipated technologies. At various times, Congress has chosen to wait and see if a scientific advancement adapts sufficiently under current law, and in other instances, it has tried to anticipate how technology will affect society and legislate accordingly. This article discusses whether it is better to legislate in contemplation of new technology or to wait and see how it develops. To avoid tangential considerations regarding the scope, influence, and mechanics of existing technology that are unrelated to the policy concerns, the issues raised in this article are examined by exploring whether the underlying purpose of a current law, specifically the Copyright Act of 1976, could be satisfactorily applied to magically animated pictures and paintings developed in J.K. Rowlings’ Harry Potter series. Using “magic” as the vehicle avoids these extraneous considerations, and the conclusions drawn can then be related back to unforeseen or developing scientific advances. As such, this article will discuss the application of aspects of the Copyright Act to a universe where the subjects of photographs and paintings are animated by magic, to determine if it is necessary to create legislation specific to this “technology” to address policy concerns regarding fixation and authorship. It asks whether current laws are adequate when applied to a world where magic exists, whether trying to legislate for future technologies is rational, and whether Congress should consider future potential technologies when contemplating or creating legislation, or whether such legislation stifles innovation. This article concludes that we should proceed with caution in allowing the potential effects of either technology in its infancy or future unrealized technology to influence our policy decisions before the science has had a chance to mature and develop, its effects on society better determined.
Liebesman, Yvette Joy, The Wisdom of Legislating for Anticipated Technological Advancements (2010). John Marshall Review of Intellectual Property Law, Vol. 10, 2010.