Kritika: Essays on Intellectual Property
Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich
Chapter 6: The new paradigm of creativity and innovation and its corollaries for the law of obligations
The chapter asks whether digital-network driven cooperation is displacing the old, exclusivity-based paradigm of intellectual property; and reaches the conclusion that, yes, indeed, we are witnessing a twilight of exclusivity in intellectual property, but only up to a point. First, network-driven cooperation, based on the feature of digital resources which makes them non-rival (not only in consumption, but also) in production, seems to be displacing the incentive provided by exclusivity more in the field of creativity than of technological innovation, also, more in copyright-based than in patent-based areas; second, even in connection with creativity, the emergence of a new paradigm of creativity appears to be complementary, rather than alternative, to the continued role of more traditional (‘legacy’) businesses. Also in the field of technological innovation, however, the roughest edges of exclusivity seem to be tempered by a number of mechanisms, which go from the resort to liability (rather than property) rules to the reliance on private ordering. The chapter also argues that it is time for IP lawyers to look at the impact the digital environment has on IP-related transactions and the private law tools used to effect them. The case is made that the role of contracts is becoming recessive; and that more and more the floor is taken by unilateral acts which functionally embody the gift and cooperation goals of the digital environment and structurally have to deal with the technological determinants of the transactions (including non-rivalry in re-use of digital resources). Throughout the chapter, digital platforms are seen as a challenge – and a threat – not only to legacy businesses but also to network-driven cooperation and sharing.
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