Dynamic Inefficiencies of Intellectual Property Rights from an Evolutionary/Problem-Solving Perspective: Some Insights on Computer Software and Reverse … (original) (raw)
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The extension of the scope of protection in software products and technologies has blurred the traditional dichotomy between idea and expression and re-shaped the borders between patents and copyrights. The article discusses the role of ideas and expressions in development of new products and technologies and their different impact on innovation and technical change. It compares their economic merits and dissimilarities in the general episode of physical goods and in the peculiar case of intangibles through analysing the legal protection of computer programs. IP policies are continuously formed in an adaptive rather in a pro-active mode, attempting to provide new technological developments protection by including them within the scope of traditional regimes. Therefore, a historical outline of the evolution of information technologies drawn beyond the contemporary line of jurisdiction of intellectual property rights assists in identifying the unique and consistent economic characteri...
I examine in this study the intersection of intellectual property law (IP) with competition law. The property rights rhetoric has been instrumental in providing some degree of deference to IP rights. For some time, the values of IP and competition law were perceived to be in conflict: Whereas IP law focuses on the reqard of inventive effort and the inventor's incentives to innovate, by conferring an exclusive right on the use of the invention, competition law emphasises teh dissemination of innovation by ensuring diffusion and access. Circumstances have nevertheless evolved. Innovation became an objective of competition law and the relationship between the two disciplines is no longer antagonistic, but complementary. IP protection has also expanded considerably and is often granted to trivial inventions. This evolution challenges the usefulness of teh property rights approach, which aimed at defending IP rights against a disproportionate application of competition law. The property rights rhetoric does not contribute to the understanding of the need to balance incentives to innovation with that of enhancing cumulative innovation to teh benefit of teh consumers. It is static as it visualises IP and competition law in separate spheres, rendering more difficult the establishment of a dialectical relationship between the two. I argue that the conceptualization of IP as a form of regulation provides instead a more adequate theoretical framework as it enables a harmonious interaction between competition law and IP, while also taking into account, in assessing the appropriate levels of IP protection, the specific circumstances of each economic sector.
2010
Intellectual Property is a very serious matter. Some estimates conclude that the current value of intellectual property significantly outweigh the value of physical propertyland, tangibles and intangibles together. A growing percentage of the GDP in industrial countries is comprised now of informational goods such as software, movies, music drugs and databases. 1 The scope of IP protection has of course significant effect on this ecconomic value and the laws regulating intellectual property in the information age are perceived as a key for economic growth. Intellectual property law, therefore, has become of immense importance. It has seen in the last decade the most significant changes since its birth following the invention of printing. The field of IP law became also an important battleground for interest groups, politicians, and different voices in civil society. The borderless nature of informational goods highlights also national interests, which are reflected in internationalization of legal arrangements and institutions in this field and in growing controversies among nations and governments.
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Intellectual property (“IP”) is often credited with providing an incentive for inventors to develop their creativity. Through IP protection, inventors can recoup their investment and make a profit. That idea, which has inspired legislators worldwide, is currently challenged in the European case law on competition. In the last twenty years, five cases have limited, in the name of competition, the possibility for firms to use IP rights acquired in conformity with applicable laws. These cases are examined in this Article. We analyze the scope of the emerging jurisprudence, and we investigate the arguments articulated, in support of their position, by the European instances involved.
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After a brief introduction to the subject matter of intellectual property, an internal and external critique of Anglo-American systems of intellectual property protection will be offered. Internally, it will be argued that incentive-based social progress justifications for intellectual property fail – alas, if we are to conduct a cost benefit analysis it appears that a different model or a different set of rights would be better than our current system. Social progress incentive-based arguments do not justify current copyright, patent, and trade secret models of intellectual property protection. Moreover, even if these arguments could be modified, they would seem to require allowances for multiple patents for the “same” intangible work, not patent monopolies. Externally, it will be argued that consequentialism – more specifically, rule-utilitarianism – is beset with numerous seemingly insurmountable difficulties and cannot provide an adequate foundation for intellectual property. If the internal or external arguments succeed, then we will have to either find a different justification or abandon systems of intellectual property protection altogether.