Beyond IP Innovation Law: The Bigger Picture


Publish Date:
September 1, 2021
Publication Title:
European Media, IP & IT Law Review, Medien und Recht International (MR-Int)
MR Verlag
Place of Publication:
Journal Article Volume 18 Issue 21/3 Page(s) 139 - 142
  • Mauritz Kop, Beyond IP Innovation Law: The Bigger Picture, European Media, IP & IT Law Review, Medien und Recht International (MR-Int), issue 21/3, pages 139-142 (2021).


Sustainable innovation law seeks to examine the interface between creativity, technology, society and law, beyond intellectual property (IP). Its study combines legal disciplines such as information law, cyberlaw, antitrust law, consumer protection law and the safeguarding of fundamental rights, with key Fourth Industrial Revolution (4IR) technologies such as artificial intelligence (AI), machine learning, big data, quantum computing, CRISPR-CAS and virtual reality (VR). An overarching principle of sustainable innovation law is that progress made must be ethical, social, beneficial to the economy, increase citizens well-being and support the environment. That is what makes it sustainable.

IP is an important driver of innovation. But IP is not the only incentive & reward mechanism that spurs human creative or technical innovation. Many alternative instruments, systems and methods that move knowledge production forward exist beyond IP, and its exclusive rights to use, reproduce and publish relevant subject matter. Examples are competitions, prizes, subsidies, grants, fines, tort law, market regulation (access/opening & barriers/restrictions), antitrust law, labor law (free movement & non-competes), commons-based production, education and R&D tax incentives.

Open innovation refers to a mindset of sharing knowledge. The term is associated with access, freedom to operate, combining thinking power, synergistic effects, sharing and building upon ideas, data donorship & patent pools, open source, digital commons and public domain. This openness contrasts with closed innovation, and its paradigms of secrecy, restriction and exclusivity. Open innovation is widely recognized to be beneficial for society and the common good.

In some cases, however, open innovation might not be the preferred policy choice. In that case, control needs to be built into the architecture of innovation. Exclusive rights might be required to make sure companies invest in R&D. In the form of patents and trade secrets. And sometimes, safety, societal or even existential risks outweigh the benefits associated with openness. Governments can then stifle innovation by restricting access to information. Restricting access makes discovery, invention and follow-on innovation harder. For instance, by utilizing state secrets or by imposing dual use regulations that prohibit trade of certain high-risk goods, technologies or applications, such as quantum-resistant asymmetric cybersecurity algorithms. Note that these are exceptions to the main rule that open innovation ought to be encouraged in general.

Thus, policy makers should search for an innovation optimum that combines desired levels of openness and control, after a balanced assessment of private and public interests — including benefits & risks- involved. The public interest of a livable environment plays a leading role in all of this. A culture of collaborative, cross-disciplinary innovation will help to protect the planet we are living on and assist humanity in fighting climate change.