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Thank you for joining this week's edition of Brainwaves. I'm Drew Jackson, and today we're exploring:

The Future of Intellectual Property

Credit ASHA LABS

Our time is characterized by accelerating technological advancement and global interconnectedness. Intellectual property has never been more important.

To effectively navigate this complex landscape, it’s imperative to view intellectual property through a “futures thinking” approach. However, to truly grasp where intellectual property is heading, we must first appreciate its journey from ancient concepts to today’s intricate frameworks.

Like many other stellar inventions and innovations, intellectual property can trace its roots back to the ancient Greeks and Romans.

Back around 500 B.C.E., chefs in the Greek colony of Sybaris experienced one of the first pieces of intellectual property protection when the legislature granted them a year-long monopoly for creating particular culinary delights.

Two hundred years later, around 300 B.C.E., Vitruvius, a Roman architect and engineer, is said to have tried a case of intellectual property theft while serving as the judge in a literary contest in Alexandria. Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others.

In the first century C.E., although there was no official intellectual property law in the Roman Empire, jurists in a lawsuit discussed the different ownership interests associated with an intellectual work—the ownership of a painting and the ownership of the table which portrayed the painting.

Jumping forward a millennium, the Venetian Patent Statute of 1474 in the Republic of Venice stated that patents might be granted for “any new and ingenious device, not previously made.” This Statute is usually considered to be the earliest codified patent system in the world.

Since then, intellectual property laws, policies, and regulations have expanded globally, formalizing the incentive structure and protections that founders, entrepreneurs, researchers, and many other passionate developers rely on today.

Throughout these developments, the intellectual property landscape has continually evolved, establishing the modern 21st-century traditional model of intellectual property protection. In one of my first articles, Intellectual Property 101, I laid out the current structure of the main intellectual property landscape:

To protect these various forms of intellectual property, inventors and knowledge creators have to proceed through a complicated process to protect their proprietary knowledge fully.

Credit Ledge Finance

Emerging Challenges to Conventional IP Frameworks

Although the intellectual property framework has been crafted over the last 500 years, there are still many emerging challenges that need to be addressed due to the rapid pace of change in the 21st century, particularly technological and computer-driven change.

New technological developments continue to provide obstacles to the evolving IP landscape, with significant developments including artificial intelligence, blockchain, NFTs, the “metaverse”, and many more.

For example, the non-fungible token (NFT) craze of 2021 introduced new complexities into the innovation landscape regarding ownership and copyright of digital assets. While these NFTs can prove ownership via the blockchain, they don’t automatically confer a copyright to the material, leading to heated legal debates about licensing and royalties for digital art and media.

On another note, I’ve already discussed in depth how artificial intelligence continues to pose a large problem for authorship and inventorship claims (along with a large multitude of other issues).

Besides these technological advancements, other aspects of the world, including policy stagnation, globalization advancements, and more, are obstacles in the evolving landscape of intellectual property.

For instance, the ease of copying and distributing digital content through the internet makes enforcing copyright laws increasingly difficult. The United States Chamber of Commerce estimates that digital piracy costs American businesses approximately $77B annually (although 80% of this is attributable to illegal streaming).

The interconnected global economy makes protecting intellectual property across borders more challenging due to varying legal systems and enforcement mechanisms. International collaboration and harmonized frameworks are becoming increasingly vital.

Similarly, while trade secrets have traditionally offered indefinite protection, the global supply chain and increased data sharing make it harder to track and enforce these rights.

Throughout these issues, many existing intellectual property laws struggle to keep pace with the speed of technological innovation, leading to a need for regulatory adaptations in emerging fields like biotechnology and quantum computing.

Credit Network World

Technological Acceleration Poses Issues for IP

As previously discussed, technological acceleration is redefining the concepts that underpin many of the intellectual property foundations we have come to revere.

Artificial intelligence’s ability to autonomously generate creative works and inventive solutions blurs the traditional distinction between human and machine-generated outputs. This has challenged the foundational concept of human authorship, inventorship, and ownership, forcing a re-evaluation of who or what constitutes a “creator” of a protected work.

The rapid pace of innovation means that the exclusive window for monetizing protected intellectual property is shrinking. Innovations that once held a competitive advantage for years now face swift replication and adaptation, demanding that companies and inventors have a more agile intellectual property strategy.

The digital age of technological development has ushered in the emergence of new forms of intellectual property or valuable intangible assets. For instance, potentially new expansions could include domain names, algorithms, data sets, and more—all things that may not fit into traditional intellectual property categories.

On a positive note, technology encourages open innovation models, where collaboration and collective value (usually through open-source applications and software) are emphasized. This structure challenges the traditional intellectual property structures that rely on more defined lines of ownership (or lack thereof).

Throughout the last couple of decades, technological accelerations have simultaneously helped and hindered intellectual property rights. In addition to the examples cited above, technology can make infringement easier (e.g., deepfakes, piracy, copyright infringement), however, it also offers tools for detecting intellectual property infringements more quickly (e.g., AI-powered brand protection).

Credit Dennemeyer.com

Looking Forward to the Future of IP

Given the exponential rate of technological advancement and world progression, the future of intellectual property continues to be uncertain.

The interconnectedness of the factors affecting intellectual property continues to add complexity to the forecasting of intellectual property trends.

For instance, the rapid technological advancements previously discussed (AI, blockchain, biotech, quantum computing, and more) are progressing exponentially faster than intellectual property policy and regulations. The legal structure simply cannot keep up.

In addition, global economic shifts, geopolitical influences, changing societal values, and ethical considerations further complicate the forecasting of intellectual property trends. There are simply too many things affecting the future of intellectual property.

Diving deeper into this subject, the way the world currently thinks about intellectual property overlooks many potential blind spots that will affect the future of intellectual property.

This exhibits in 4 major ways:

• Over-reliance on historical precedents in a rapidly changing environment
• Siloed thinking within IP disciplines
• Insufficient consideration of “soft” IP and informal innovation
• Bias towards established players and traditional industries

Our over-reliance on historical precedents (applying 17th, 18th, and 19th century frameworks to the 21st century) continues to plague the intellectual property sector, as we tend to apply old laws to new technologies - technologies which the laws were never intended to apply for (which is why some have called for laws to have a 25, 50, or 100 year necessary revisal period).

This over-reliance often presents through our application of outdated laws to modern, unique situations. Regulators, policy-makers, and other intellectual property professionals have had difficulty in conceptualizing genuinely novel intellectual property challenges; however, the 21st century is full of them.

Within our policy frameworks, we’ve separated patent, copyright, trademark, and trade secret expertise (among others). In other words, each has its own set of regulations and legal precedents. These separations have siloed our thinking, as problems from one discipline and their associated solutions don’t experience a knowledge spill-over into the other sectors.

Furthermore, the rigidity of our policy frameworks continues to be our downfall. Despite what we’ve already discussed, the value of open-source contributions, community knowledge, and cultural expressions (major 21st-century popularizations to the innovation cycle) are continually underestimated. Historically, our frameworks have focused on the formal registration of intellectual property instead of emphasizing practical application and the market impact of these protections.

Those who have purportedly “carefully crafted” the intellectual property guidelines we know so well today exhibit the same bias alleged in other areas of our governmental bodies: the favorism of established players and traditional industries.

This bias (whether explicit—which it often is—or implicit) makes those who are crafting our policy potentially overlook emerging innovators and business models. More often than not, it’s within these overlooked pieces of knowledge that the most societal impact occurs. By this framework exhibiting this bias, we are preventing widespread access to technologies that could potentially have huge impacts on our lives.

Credit University of California, Berkeley

Reevaluating Our Approach to Intellectual Property

These factors highly suggest we need to reevaluate our approach to intellectual property as a society, shrugging off traditional solutions in favor of a more modern, future-thinking approach.

Like many key issues plaguing our society, there isn’t just a one-size-fits-all solution to this issue. However, there are some changes that we can make which will have large positive strategic implications:

• Incorporate adaptive strategies for individuals and organizations
• Prepare for radical shifts in intellectual property
• Develop flexible intellectual property approaches
• Balance protection with innovation
• Emphasize continuous learning and adaptation

In this rapidly evolving intellectual property landscape, both individuals and organizations could adopt highly adaptive strategies to maximize any meaningful benefits from their efforts. For inventors, this could mean diversifying into multiple types of intellectual property protection, whereas for businesses, instead of treating their intellectual property portfolio as a static collection of assets, they could adopt a system of dynamic portfolio management (continual assessment of value, enforceability, and strategic relevance of their IP).

Across the various forms of intellectual property, in the 21st century and beyond, the way inventors conceptualize their intellectual property will continue to change. We need to rethink terms like “authorship” and “inventorship”, especially as these “inventors” expand their usage of tools such as AI.

Not to mention, we haven’t begun to address the intellectual property implications of the metaverse and other virtual worlds (and their associated economies). Who “owns” the “rights” to any digital works like NFTs or digital avatars?

Underlying these complicated questions is the issue of changing data ownership and privacy. What is the legality of data as a proprietary asset with (inherent?) value? Potential evolutions of our approach could include exploring frameworks for commercializing data while ensuring compliance throughout the data lifecycle.

What’s clear: our approach to intellectual property needs to be infinitely more flexible. This could include hybrid intellectual property protection strategies, iterative intellectual property development and review, and large-scale proactive engagement with policy bodies across the globe.

Many inventions and other forms of intellectual property don’t fall easily into any of the traditionally established categories, instead bridging across them. A more flexible approach would allow for the combination of different forms of intellectual property protection (e.g., patenting the core technology associated with an invention while maintaining certain processes associated with the invention as trade secrets).

A flexible framework would treat intellectual property strategy and policy as an ongoing process (iterative), not a one-time event. Regularly reviewing legislation and other pertinent legislative factors against market, cultural, technological, and overall societal changes is crucial for a successful, adaptive framework.

This would involve close, proactive engagement with the relevant global bodies through participation in industry forums, governmental consultations, and other activities that actively help shape the future of intellectual property protections, with an emphasis on advocating for frameworks that support innovation in emerging fields (and through emerging creators).

However well-intentioned, this strategy of enhanced flexibility won’t be possible without carefully considering the balance of protection with innovation. Countries that foster and promote an “open innovation” policy, recognizing the benefits of collaboration and shared knowledge in the acceleration of innovations, will experience significantly larger levels of innovation compared to their closed-off peers.

Our systems need to incentivize innovation while avoiding an over-protection mindset. Excessive or defensive patenting can stifle innovation. Often, there are unnecessary barriers that are preventing innovations from coming to market - these need to be eliminated. It’s a careful balance.

Overall, our systems and the members within them need to emphasize continuous learning and adaptation. This could include embracing viewpoints such as horizontal and vertical scanning, fostering agility in decision-making, and strategic partnerships with the various other intellectual property intelligence firms.

Credit Photowall

Navigating IP Concerns and the New IP Landscape

Going forward, we need to be more intentional in the way we navigate intellectual property concerns and the upcoming intellectual property landscape we will shortly find ourselves in.

This involves moving beyond static views of the intellectual property landscape to recognize its constant evolution, acknowledging the inherent dynamism present within the intellectual property field. IP shouldn’t be a fixed legal concept, but a responsive framework.

The responsive framework includes a holistic understanding of how IP is a form of interconnected factors and recognizes that technological, legal, economic, and social forces are intertwined.

A key portion of this holistic understanding is the inclusion of multiple perspectives, fostering an interdisciplinary collaboration. As emphasized in other facets of our society today, incorporating diverse viewpoints in decision-making is critical to the future of the intellectual property landscape. For instance, leveraging different ways of thinking can identify existing blind spots and opportunities for future improvements.

To reiterate, unlocking the value of this framework lies in the continual emphasis of its responsive dynamics. Maintaining the adaptability and flexibility in our intellectual property strategy will prevent the frameworks we’ve put in place from becoming static and limiting.

All of this (and more) can be accomplished in the present moment. If the relevant parties recognize this, we can utilize our existing frameworks as a baseline, but not as a limitation, learning from historical issues to inform future trends.

What cannot be overstated is the importance of intellectual property in our future. Presidents, industry titans, and the like continue to harp on its importance. Without a doubt, our system needs an upgrade to unlock the full value of intellectual property in our future.

To begin, we need to rethink how we think about intellectual property.

That’s all for today. I’ll be back in your inbox on Saturday with The Saturday Morning Newsletter.

Thanks for reading,

Drew Jackson

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