CREATe presents the second entry in our series of working papers released in 2020: “The Fundamental Right to Property and the Protection of Investment: How Difficult is it to Repeal New Intellectual Property Rights?”.
This working paper by Martin Husovec, (CREATe Fellow, Assistant Professor, Tilburg School of Law & Affiliated Scholar, Stanford CIS) is a pre-print of a chapter due to be published in the Research Handbook on Intellectual Property and Investment Law (edited by Christophe Geiger) in June 2020. The paper was also delivered as a CREATe public lecture at the University of Glasgow on 6 February 2019 (read the full report here).
In the 2010s, we are witnessing a number of policy debates concerning proposals for new intellectual property rights. The high-profile examples include publishers’ rights, data producers’ rights, and sport events organizers’ rights. The arguments behind these rights are purely utilitarian, unlike in the case of some traditional intellectual property rights, such as authors’ or inventors’ rights. These rights are clearly presented as tools of the European Union (EU) innovation policy, incentivizing quality journalism, data creation and trading or investments in sports. However, how sticky are these tools?
A lot of attention in the literature rightly focuses on the first-order issue of their social costs and benefits. Little attention is paid to the problem of institutional inertia which keeps some of these solutions in circulation despite their proven ineffectiveness. While economic progress is unthinkable without stable property rights, it is equally unthinkable without their never-ending adjustment and continuous reflection of their effects. In this working paper, I pose the following question: how difficult is it to legislate away a new set of intellectual property rights once they are found to be incapable of delivering on their promises?
The full working paper can be read here.
For related work by Martin, see our Copyright in the Digital Single Market Directive Implementation resource page for details on the European Copyright Roundtables: Implementing the Digital Single Market Directive and a statement on Safeguarding User Freedoms.