2. Welcoming Digital Innovation: Why America Seems to Get It Right

The recent history of intellectual property cases on both sides of the Atlantic provides numerous stories on how new technological solutions and innovative technologies have put justice systems to the test. Put crudely, innovation has the bad habit of being innovative; therefore, it does not always benefit from being legislated for in advance. This ‘shortcoming’ appears to be more of an issue in legal systems relying on precise rules instead of flexible standards that would leave room for interpretation by courts of law. Conversely, legal systems allowing greater discretion to judges seem to be ultimately more welcoming of new digital technologies and find it easier to deal with the challenges they present from the intellectual property perspective. As a prime example, U.S. copyright law hands the judge a flexible fair use test to apply to the individual case, weighing its unique aspects, including general considerations such as the benefit to the public, and to reach a conclusion that was not necessarily foreseeable at the time of the statutory law being drafted.