In his latest Editorial, editorial board member Neil Wilkof suggests that IP is experiencing a period of stagnation, after the Golden Age period of the 1980s. Neil argues that "there is a sense that IP has lost its commanding position as a prime source of value creation in a post-industrial world", looking at various explanations for such perception. Is the Golden Age of IP behind us?
The passing of the Golden Age of IP: Quo Vadis?
Neil Wilkof*
One of the more interesting features that accompanies the rise and decline of a phenomenon is the notion of a “Golden Age”. A “Golden Age” is invariably lodged in the past and usually it is only later generations that come to view it as such. Intellectual property is not immune to this trajectory. As we approach the home lap of the second decade of this century, it is becoming more and more likely that IP as we know it also has had its “Golden Age”. Looking at IP present, it is difficult to shake the impression that IP is in a state of stagnation.
IP’s “Golden Age” was roughly the period of the 1980s, when patents, copyright and trade marks all came together to give IP a collective preeminence. The ascendance of patents emerged from a less hostile view to patents resting on a recognition of their pro-competitive effects, the potential of encouraging patenting in the West as a means to counter the perceived challenge from Japanese industry, and the promise of judicial streamlining of patent protection following the establishment of the US Federal Circuit Court of Appeals.
As for copyright, notable was the US joining the Berne Convention and the changing perception of copyright protection from a quaint form of legal protection for books and the art world to the legal guardian of mass distribution of creative content as disparate as computer software and video cassettes. Trade marks underwent a transition from being viewed as a manipulative tool in the hands of advertisers for creating artificial consumer wants to a positive purveyor of consumer information and as a means for creating company value in the form of brand equity. At the international level, the foundations were being set down for the inclusion of IP protection within the framework of a new international trade law, culminating in the TRIPS Agreement.
By the first decade of the 21st century, however, fortress IP was showing vulnerabilities in multiple directions. Patents were being attacked as providing the basis for patent trolling and other claimed patent misuse, leading some to question the entire patent system. Copyright protection was being viewed as toothless in the face of rampant copying on the internet, on the one hand, and too often inimical to the encouragement of content creation, on the other. Trade marks fared only marginally better, prized for the potential long-term and robust value in strong brands, but also coming under increasing attack as overprotecting trade marks as a form of property, even when there was no threat to origin or confusion.
IP qua IP has not disappeared as a body of legal rights and protection. For example, patents will still be crucial in biotech, pharma and the like and strong trade marks will continue to be valuable. Taken as a whole, however, there is a sense that IP has lost its commanding position as a prime source of value creation in a post-industrial world.
The main trigger for this decline is the ever-expanding penetration of digitization, where traditional IP protection—patents, copyright and trade marks, is viewed as less relevant. In their place, other types of intangible concern have increasingly taken centre stage. Most notable are issues of secrecy, privacy data protection and the quest for network effects leading to impregnable barriers to entry. The threat of a wide-scale security breach, leading to the unauthorized disclosure of valuable information, at both the commercial and private levels, may loom larger than any potential act of copyright or trade mark infringement.
These developments have not passed by the IP academic community. One need only look at faculty websites. No longer are faculty staff satisfied with being identified as “Professor of Intellectual Property.” More and more, academic positions are characterized by the ampersand, such as a “Professor of Intellectual Property & Innovation” or “Professor of Intellectual Property & Internet Law.” Both “Innovation” and “Internet Law” are self-standing fields of inquiry. Intellectual property may well play some role in each of these fields, but one can legitimately ask whether expertise in IP justifies the ampersand. Or maybe it is merely a rational way to deal with the challenge posed by the fact that the Golden Age of IP, as we know it, may well be behind us. *
*Email: wilkof@bressler.co.il.
(c) The Author(s) 2016. Published by Oxford University Press. All rights reserved.
