Intellectual property on the cusp of the intangible economy

Abstract

This contribution illustrates that, while technological advancements gradually remove the natural scarcity of goods, the law increasingly has turned to the protection of immaterial rarity so as to conserve the market's original condition. At the same time, advances in the gathering and use of consumers' data are opening up new possibilities for consumption so that the traditional producer will likely suffer significant competitive disadvantages vis-à-vis the data-driven platform that is able to collect, analyse and exploit, on a large scale, information about users' past behaviour. The predominant concern under those circumstances is the consumer's loss of most conventional opportunities for controlling the market's supply because both swings threaten to suppress an approach to the promotion of progress which integrates the possibility of many distinct paths of self-governance by consumers whose choices are the result of an enduring creative cultural process that involves genuine change and innovation. Progress, therefore, must be based not exclusively on a concept of revealed consumer preferences, but rather on one that enables actors to resolve the ever-present question of what goals our economies ought to pursue. This renders plain a need to adjust the interpretation and application of intellectual property law in the digital economy in conjunction with an increased extent of competition law enforcement.