Saturday, August 25, 2018

Yochai Benkler on Innovation & Networks

Yochai Benkler is a giant within the intellectual history of IP law; some of his work will surely end up on my Classic Patent Scholarship page if I expand it to post-2000 works. Even though I don't agree with all of his conclusions, I think IP scholars should at least be familiar with his arguments. For those who haven't read his earlier works—or who just want a refresher on his take—you might enjoy his recent review article, Law, Innovation, and Collaboration in Networked Economy and Society, 13 Ann. Rev. L. & Soc. Sci. 231 (2017). Here is the abstract:
Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market-based innovation focused on material self-interest to interaction between market and nonmarket practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, noncompete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing of market and nonmarket models and motivations, and weaving of commons with property are central to the innovation process.
Note that the shift Benkler is describing is a shift both in scholars' understanding of innovation and in the nature of innovation itself—particularly due to changes in organizational structure made possible by technologies such as the internet. The optimal innovation policy 100 years ago was likely different from the optimal innovation policy in today's more networked economy. To be sure, historical innovation studies can still be quite illuminating—but it is always important to consider how applicable the conclusions are likely to be in the modern context.

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