negotiations, which finally led to the adoption of the WTO and of its IP component, TRIPs.[1] It was also quickly taken up by the EU and particularly so in connection with copyright-based products, as if our legacy of artistic creation could be a long lasting source of income flowing into Europe from the rest of the world until the long term of protection expires.
There are several grounds to believe that this strategy is both illusory and doomed. Here, leaving aside that it is easier to let the biblical camel pass through the needle’s eye than to persuade our developing neighbours that strong enforcement of our rights is in their interest, I will only mention the fact that the domestic economies of our business partners have finally reached such a size that their demands that we give them access to our technology anle as a precondition to our obtaining access to their markets are increasingly successful.[2]
While IP-based exclusivity protection would (unsurprisingly) appear not to assist our economies as much as our trade negotiators had hoped, I suggest that we would do better to place our bets on the third paradigm of innovation which seems to be emerging: distributed innovation through digital network driven cooperation. In the beginning innovation was the preserve of individuals; at a later stage the engine was to be found in organisations, be they the firms or research entities. Both modes required appropriation of the results of innovation by means of property rights over IP, to provide the incentives to creation. This has changed radically in the last few decades: while classical property rights-based IP protection has increasingly proved unequal to the new challenges of innovation,[3] at the same time network driven innovation is seen to thrive in contexts in
- ↑ On the origins of the American idea, swiftly taken up by European trade diplomacy, that the lack of global IP protection and enforcement amounts to a “trade barrier” see Paul A. David, “Intellectual Property Institutions and the Panda’s Thumb: Patents, Copyrights, and Trade Secrets in Economic Theory and History” in Global Dimensions of Intellectual Property Rights in Science and Technology, ed. by Mitchell B. Wallerstein, Mary Ellen Mogee and Roberta A. Schoen (Washington, DC: National Academy Press, 1993), pp. 19—62; and Global Business Regulation, ed. by John Braithwaite and Peter Drahos (Cambridge: Cambridge University Press, 2000), p. 61.
- ↑ Anecdotal evidence from nuclear plants and high speed trains.
- ↑ As anticipated by Jerome H. Reichman, “Legal Hybrids between the Patent and Copyright Paradigms”, Columbia Law Review, 94 (1994), 2432—558. For a confirmation of the shortcomings of the classical approach in the new technological environment, see Michael A. Heller, “The Tragedy of the Anticommons: Property in the Transition from Marx to Markets”, Harvard Law Review, 111 (1998), 622—88; and Michael A. Heller and Rebecca 5. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research”, Science, 280 (1998), 698—701. For a review of the relevant literature, see Marco Ricolfi, “Is There an Antitrust Antidote Against IP Overprotection within TRIPs?”, Marquette Intellectual Property Law Review, 10 (2006), 305—67.
