Diverging Approaches to Intellectual Property and a Reform Proposal Prompted by AI

Diverging Approaches to Intellectual Property and a Reform Proposal Prompted by AI

Journal article

1 electronic resource (page 416–429)

This article aims at reconstructing historic divergences between juris-political approaches to IP legislation, scholarship and jurisprudence. It is a tale of two IPs. On the one side, ‘protectionist’ trends focus on expanding both the area and scope of exclusive rights, on the other, ‘reductionist’ trends balance the protection against free riding with the need to preserve dynamic competition and social access to culture. Protectionist features of EU legislation are discussed, also as examples of wider trends ultimately embodied in the TRIPS Agreement. Such features are historically rooted in ‘Schumpeterian’ modes of production of innovation characterized by intensive fixed investment costs and the consequent need to ‘squeeze’ profits from an expanded exclusive IP protection of products and services. However, progressive industrial specialization pushes towards ‘shared’ models of IPR exploitation. And as, more recently, the digital era has taken the stage, ‘exclusionary’ rights privileged in the analog world have come to clash with the needs of the new network economy, where the creation of value relies upon the scope of online connections. Thus, new approaches to IP have emerged, in particular embodied in the Essential Facilities (EF) jurisprudential doctrine and its shift ‘from property to liability’ regarding top-notch – ‘non-substitutable’ or duplicable – innovation. The author argues that the objective reach of said doctrine should be widened vis-à-vis the advent of artificial intelligence (AI), and suggests a new general IP paradigm, no longer ‘exclusionary’, however granting fair compensation to innovators and creators. A historic model from Italian copyright law is submitted for consideration.

Crossref

GRUR International ; 74, 5, 2025, 2632-8550.

[Oxford, England] : Oxford University Press (OUP), 2025.

English

https://academic.oup.com/grurint/article/72/3/231/6998505

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