Fostering Innovation and Development
Edited by Christopher Arup and William van Caenegem
Chapter 14: Split Entitlements? Intellectual Property Policy for Clusters and Networks
14. Split entitlements? Intellectual property policy for clusters and networks 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...
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