Is protection of data through data exclusivity, technological protection measures or rights management information actually intellectual property?

Margaret Ann Wilkinson

Chapter 9 in The Future of Intellectual Property, 2021, pp 169-192 from Edward Elgar Publishing

Abstract: The oldest legal devices forming part of the collectivity that became known as intellectual property (IP) are patents and copyrights. Both create time-limited, privately-held monopolies over information that encourage public dissemination of ideas. Examining these two and comparing them with three newer forms of information protection (data exclusivity, technological protection measures (TPM), and rights management information (RMI)), this chapter asks which, if any, of the latter three can also be properly defined as intellectual property. While data exclusivity has been associated with patent, the existence of patent is not necessary to the existence of data exclusivity. Similarly, while the statutory language enshrining TPM and RMI is typically associated with copyright and the technology involved can embrace works and other subject matter protected by copyright, the existence of neither TPM nor RMI protection is predicated upon the material involved being in copyright. Given that data exclusivity can exist independent of patent and neither TPM not RMI require that information associated with them be in copyright, it appears a mischaracterization to describe any of these later three devices as secondary to primary IP devices. Rather, data exclusivity, TPM and RMI appear better characterized as devices operating independent of either patent or copyright and channeling distribution of information in specific directions, typically ones dominated by corporate interests, censoring other channels of information distribution.

Keywords: Economics and Finance; Innovations and Technology; Law - Academic; Law - Professional (search for similar items in EconPapers)
Date: 2021
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