Author: Christophe Geiger
Abstract: Without any doubt, important investments are often needed to generate creative outputs. However, the intellectual property (IP) system does not protect them as such; investments are only indirectly protected through the possibility to exploit and monetize the rights granted to a creator as a counterpart to the collective enrichment generated by the access to his new work. If the investment (however substantial) does not lead to a creative output, no protection is granted. This short opinion article tries to demonstrate that the progressive paradigm shift of intellectual property to an investment-protection mechanism is probably at the core of most of the current problems faced by the IP system. The very much debated question whether copyright can be granted to an AI-generated output is a good example. The classical author-centered approach of the IP system is rather straightforward: only humans can be creators. However, if you consider IP as an investment-protection mechanism, then it is not illogical that the investor in the AI could be considered the sole beneficiary of IP protection, even without any human intervention.
This paper argues that in order to regain its proper function, its fair balance and its social acceptance, a progressive elimination of the investment protection rationale in intellectual property law is needed. Having IP undergo such an arguable radical therapy is possible and could be done by a proper constitutional framing of IP within the right to science and culture or even freedom of expression. It would give help shaping an ethical framework for IP by both safeguarding the link between the creators, their productions and society, while at the same time enabling the originators of the creative output to receive fair remuneration for work.
Citation: Geiger, Christophe, Intellectual Property and Investment Protection: A Misleading Equation (November 14, 2021). Available at SSRN: https://ssrn.com/abstract=3958320
