Academic journal article Texas Law Review

The Path of IP Studies: Growth, Diversification, and Hope

Academic journal article Texas Law Review

The Path of IP Studies: Growth, Diversification, and Hope

Article excerpt

In Bilski v. Kappos,1 the U.S. Supreme Court made it official: we live in "the Information Age."2 Information's paramount economic significance is now undeniable. In the century's first decade, intangible assets were estimated to account for "[a]s much as three-quarters of the value of publicly traded companies."3 Related to this predominance of "conceptual" assets,4 public policymakers and private actors now widely recognize innovation-a form of "information in action"-as vital to economic growth.5 Moreover, in an age of drone warfare,6 the Stuxnet computer virus,7 panopticon-like electronic surveillance,8 cheap gene sequencing,9 and massive computer-related breaches of privacy,10 information and innovation have assumed unprecedented prominence even in "noneconomic" policy areas such as national security, liberty, and personal health. Although world events can still turn on Bismarck's "iron and blood,"11 knowledge and bits increasingly determine wealth, power, and everyday life.

Focus on information and innovation inevitably leads to concern with intellectual property.12 "Intellectual property" or "IP" is an umbrella term for a menagerie of legal regimes, such as copyright, patent, trademark, and trade secrets, that provide or fortify private rights in information.13 Although a variety of rationales for IP regimes have been posited, the dominant rationales, particularly in the United States, have been instru- mental, viewing IP rights as means to ends.14 Despite this instrumental outlook, however, good empirical evidence about IP regimes' operation and potential for reform has typically been frustratingly sparse. Some of this sparseness has reflected the difficulty of assembling such information, but much has reflected a lack of heavy investment in serious IP empirical studies. The Information Age, an age that "empowers people with new capacities to perform statistical analyses,"15 has caused this last worm to turn. IP legal studies have entered a new period of very substantial empirical scholarship, a period that might enable more precise and accurate policy prescriptions than ever before.

This symposium issue presents scholarship that aspires to push forward understanding of how IP functions and how it might improve. In view of the complex, diverse, and ever changing environments in which new information develops, definitive answers on IP's performance and design cannot be expected anytime soon. But we can hope to take what this symposium terms "Steps Toward Evidence-Based IP." Some steps might be largely promissory in nature, providing greater insight or understanding that might lead to practical results down the road. Some steps might suggest more immediate, discrete reforms. In any event, perhaps the greatest hope for this symposium is that it will herald ever greater commitment to more systematic and sophisticated studies of intellectual property's normative justifications, empirical context, and actual and potential practical performance. In this sense, publication of this sym- posium issue should be more of a hopeful beginning than an accomplished end.

On the other hand, talk of this issue as a beginning should not obscure the fact that today's intellectual property studies themselves build on decades of work that have already transformed IP studies from one of the legal academy's more minor eddies into one of the academy's most rapidly broadening streams. Just as the current Information Age reflects decades of relentless development of communications and computing technologies, the very existence of this symposium issue reflects decades of growth in IP scholarship and the IP scholarly community itself. As we think about where present empirically oriented intellectual property studies might take us, we should take brief note of the trajectory on which IP studies and the IP community have already traveled.

A few decades ago, a leading general law review's dedication of an entire issue to largely empirically oriented IP studies would have been inconceivable. …

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