Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 1

Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

The field of intellectual property has broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. The Kritika: Essays on Intellectual Property series is a series of books that are designed to fulfill this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Breaking down the barriers of specialization, and laying the foundation for an emergent critical scholarship, this first book in the series brings together the leading scholars in the field to reflect deeply on the current state and future of their discipline.
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Chapter 6: The new paradigm of creativity and innovation and its corollaries for the law of obligations

Marco Ricolfi


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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