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

Volume 2

Edited by Gustavo Ghidini, Hanns Ullrich and Peter Drahos

The fields of intellectual property have 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. Kritika: Essays on Intellectual Property is a series of books designed to fulfil this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Volume 2 covers issues such as inter alia the current limits of knowledge and approaches to intellectual property, a functional account of intellectual property rights, China’s approach to innovation and intellectual property, the emergence of multi-layered IP-protection for designed objects, and the trajectory of increased protection for intellectual property.
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Chapter 8: It’s raining carrots: the trajectory of increased intellectual property protection

Susy Frankel

Abstract

The article explores what may be some unintended effects of the increasing depth and breadth of intellectual property rights. First, the various methods of increases in intellectual property protections are discussed. The second part presents an analysis of what is incentivised by these various modes of increase and what trajectories such modes create. The third part discusses the various areas in which intellectual property has reached a kind of tipping point in which overprotection is meeting hurdles and occasionally being curbed. Intellectual property related incentives may sometimes work but are ever context dependent and are not always effective. Too many incentives can cause complacency. The globalisation of incentives means that, at least in theory, they are there for everyone. Those who are new to the intellectual property game have responded to the framework. China, may even be an example of a country that is making better use of intellectual property than was anticipated by those whose incentive rhetoric built the global standards of intellectual property. This article concludes that the increasing levels of protection and the diverse range of incentives (carrots) has begun to and may well continue to backfire in at least two ways. First, the carrots no longer incentivise and, second, those who created the so-called incentive framework might be beaten at their own game. Keywords copyright, free trade agreements, globalisation, incentives, intellectual property, TRIPS Agreement, patents

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