This article argues that there is a mismatch between traditional intellectual property doctrine and the politics of intellectual property today. To examine the nature of the mismatch, I contrast two frameworks that both appear in contemporary debate about intellectual property: the traditional discourse, which focuses on innovation policy, and a newer, less clearly codified discourse that views intellectual property issues from the perspective of the politics of technology. This latter discourse focuses on the challenge of democratic governance in a world where emerging technologies have assumed a central role in constituting the future, raising far-reaching questions about how they should be fitted into social orders. The innovation discourse remains dominant in policy debate, but recognizing the specific features of the politics-of-technology perspective—and presenting its distinctive vision of what is at stake in intellectual property—clarifies the struggles now in play. The politics-of-technology perspective rejects the traditional definition of the boundaries of intellectual property policy; first, because this perspective questions the empirical validity of a bright line distinction between creating technologies and making social choices about them; second, because it sees the traditional cartography as tending to constitute members of the public as "consumers" of prepackaged technologies rather than "citizens" engaged in shaping them; and third, because it has a normative commitment to enabling citizens to exercise voice and choice about emerging technology before irreversible commitments in specific directions are made. In contrast to traditional innovation discourse, the politics-of-technology perspective considers patent policy from a point of view that focuses on questions of democratic governance and political legitimacy.
Intellectual Property and the Politics of Emerging Technology: Inventors, Citizens, and Powers to Shape the Future,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss1/9