THE BOUNDARIES OF INFORMATION PROPERTY PROJECT

How do boundaries with regard to information property take form? The answer to this question is essential since boundaries define the content of the right to exclude. The standard answer refers to the statutory elements of immaterial property rights, like patentability requirements and the conditions for copyrights and exceptions (‘boundaries of information property’). These elements define ex ante what can be appropriated; the rest belongs to the public domain. The underlying concept is the property paradigm: once the right has emerged, it absorbs all powers and privileges (Art. 17(2) EU Charter of Fundamental Rights). The role of ex post regulation as a matter of property restriction has been neglected (‘boundaries to information property’); instead, the discourse refers to the ‘regulation of use’ (e.g. rules regarding research and release of biotechnology and data protection).

Yet at the time when the Boundaries to Information Property (BIP) project was initiated in 2000, tension was rising in relation to ever-growing information property. As a quantitative indicator, the number of patents granted and copyrights claimed was growing exponentially. New rights were acknowledged, the scope of subject matter broadened and the scope of protection expanded. Qualitatively, various legal principles have served to expand the scope of property as defined by the language of the claims or the visible or audible ‘work’ (e.g. equivalence; absolute product protection; a restrictive interpretation of exceptions; ‘contracting out’ of statutory boundaries). Overall, the expansion is well understood as a mirror of the transformation from an industrial into an information society. Yet conflicts around information have become increasingly political. Numerous regulations around adjacent problems have emerged, and a growing number of contracts do not simply ‘exploit’ IP, but embrace the conflicts between ‘information providers’ and ‘information seekers’.