Intellectual Property Policy Reform
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Intellectual Property Policy Reform

Fostering Innovation and Development

Edited by Christopher Arup and William van Caenegem

This state-of-the-art study argues that reforms to intellectual property (IP) should be based on the ways IP is interacting with new technologies, business models, work patterns and social mores. It identifies emerging IP reform proposals and experiments, indicating first how more rigor and independence can be built into the grant of IP rights so that genuine innovations are recognized. The original contributions then show how IP rights can be utilised, through open source licensing systems and private transfers, to disseminate knowledge. Reforms are recommended. The discussion takes in patents, copyright, trade secrets and relational obligations, considering the design of legislative directives, default principles, administrative practices, contractual terms and licence specifications.
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Chapter 14: Split Entitlements? Intellectual Property Policy for Clusters and Networks

Christopher Arup


Christopher Arup I. INTRODUCTION Between the employer and the employee, or the principal and the contractor, the law largely leaves the disposition of intellectual property use rights and use of information to freedom of contract. Innovation policy has focused on the incentives the firm receives to innovate. If the position of the inventive or creative worker is considered, the focus is on the incentives that are provided within the firm. This chapter engages with cluster theory to argue that a proinnovation policy should ensure that the worker is free to use intellectual property with new firms. The focus is on mobility and the circulation of knowledge. The original firm should only hold the rights for the purposes for which it directed or commissioned work. Non-disclosure and non-competition clauses should be invalid, except for protection of a carefully circumscribed category of trade secrets. This policy would require that freedom of contract was checked. Binding legislative provisions would be needed, not merely default rules; the courts could not be expected to further this policy through the common law. II. A. POLICY CONTEXT Cluster Theory The best intellectual property focuses on the context in which rights apply. Crucial to the impact of policy is interaction with the process of innovation. Characterised as an instrumental approach, it has to be grounded. Yet there is still a tendency for policy making to proceed from basic principles. Commonly, the view is that firms will not invest in the production, application and diffusion of knowledge without the...

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