Chapter 5 focuses on the notion of “common possession” (Gemeingut) in the formulas of world literature by Marx and Goethe. I suggest that their sense of collective possessiveness drew on the history of communal land ownership and its ramifications in German historical jurisprudence and Romantic philology. The chapter also claims that Goethe’s (conservative) scepticism about the liberal absolutization of private intellectual property formed an unlikely alliance with early socialist thought (Proudhon). On the other hand, the label “common good” attached to world literature in the Communist Manifesto not only resonated with Marx’s belief in the approaching dissolution of bourgeois property but also pointed at the ambivalent legal status of world-literary works before the internationalization of copyright. I argue that Karl von Savigny’s distinction between property and possession cuts across the legal history of world literature before and after the Berne Convention and signals a perpetual crisis of ownership in literary works.

Academic plagiarism norms enable successful scholars to monopolize ideas. The New Brandeis School in antitrust has sought to expand antitrust’s scope and ought, therefore, to support antitrust action against enforcers of plagiarism rules. However, the New Brandeis School includes many scholars, writers, and other creatives and has tended to support monopolization of intellectual output by creatives. For example, New Brandeisians have called for expansion of intellectual property laws to include news and for the non-enforcement of the antitrust laws against cartels of musicians. As a result, it is unlikely that this School will champion antitrust action against plagiarism norms.

This chapter delves into the complex legal questions surrounding AI-generated content and intellectual property rights. Because copyright and patent law primarily focus on human authorship and inventorship, the emergence of AI raises questions about the extent to which AI systems can be considered creators. The chapter explores the possibility of AI-generated works receiving copyright or patent protection and the challenges in determining authorship and originality in the context of AI. Additionally, the chapter examines the potential impact of AI on trademark and trade secret law. It discusses whether AI systems can own or hold intellectual property rights, as well as the implications for businesses and individuals who rely on AI-generated content.

This chapter draws all the threads together, highlighting the profound impact that artificial intelligence is likely to have on the landscape of intellectual property. It summarizes the core arguments of the book and sets out the author’s proposed strategies for adapting intellectual property law to the age of AI. By embracing these approaches, the chapter argues, one can ensure that intellectual property law continues to protect human creativity and innovation in the digital age.

Since the advent of ChatGPT in November 2022, public discourse has intensified regarding the intersection of artificial intelligence and intellectual property rights, particularly copyright. Large language models (LLMs) like ChatGPT and Gemini have sparked debates about what deserves copyright protection and what constitutes copyright infringement. Key questions arise: Are LLM-generated outputs original enough to merit copyright protection? And do they infringe upon existing copyrighted works used in their training data? This chapter delves into these issues, examining the legal and ethical implications of training LLMs on copyrighted material. The chapter also explores the concept of fair use, the potential for transformative use of copyrighted works, and the evolving landscape of copyright law in the age of AI.

This chapter examines the theoretical foundations of intellectual property law in the United States, setting the stage for understanding the challenges posed by artificial intelligence. The chapter focuses on utilitarianism as the dominant theoretical framework for US IP law, contrasting it with non-consequentialist theories. It provides a brief overview of the four major IP regimes:

Patent patent and copyright, which are explicitly grounded in the Constitution’s mandate to "promote the Progress of Science and useful Arts"; Trademark, which aims to reduce consumer search costs and ensure fair competition by protecting source identifiers; and Trade secret, which has a more convoluted history but has increasingly focused on promoting innovation and protecting confidential business information. The chapter emphasizes that US IP law prioritizes practical, societal outcomes over moral or philosophical considerations. It sets the stage for subsequent chapters that explore how AI’s emergence challenges these traditional theoretical underpinnings and the practical functioning of each IP regime.

This chapter explores the concept of limiting the supply of intellectual property as a strategy for preserving value. Drawing inspiration from the diamond industry, the author discusses how restricting the flow of products onto the market can increase their perceived value. The chapter examines the potential implications of AI on intellectual property, particularly in the context of human-made goods. The chapter argues that by limiting the supply of protected works, one can create a market for certified human-made goods that are valued for their unique, artisanal qualities. This approach echoes the historical shift towards artisanal goods in response to the rise of mass production. Ultimately, the chapter suggests that by carefully considering the supply and demand dynamics of intellectual property, society can ensure that the value of human creativity and innovation is preserved in the age of AI.

This chapter explores how advancements in artificial intelligence are impacting the landscape of intellectual property law. The chapter analyzes the ways in which AI can challenge traditional notions of authorship, originality, and invention. By automating creative processes and generating new ideas, AI can reduce the pool of human-created works eligible for intellectual property protection. The chapter delves into the legal and ethical implications of these developments and discusses potential strategies for adapting intellectual property law to the AI age.

This short chapter discusses the impact of lab-grown diamonds on the traditional diamond industry and the value of a diamond and uses it as an allegory for AI’s potential impact on intellectual property. Additionally, the chapter touches upon consumer preferences and the growing trend towards alternative gemstones, as well as the implications for the future of the diamond industry, again drawing parallels to the IP system.

This chapter considers how AI threatens to diminish the value proposition of IP rights, focusing specifically on trademarks and copyright. It discusses how the intangible nature of these rights relies on a shared societal understanding and belief in their existence and value. AI, however, has the potential to undermine this shared understanding, leading to a decrease in the perceived value of IP. The chapter argues that AI challenges the traditional function of trademarks as indicators of source and quality. As AI-generated content proliferates online, it becomes increasingly difficult to distinguish between authentic and artificial sources, eroding consumer trust and confidence in trademarks. This erosion is exacerbated by AI’s ability to manipulate language and imagery, creating a world where consumers may no longer be able to rely on trademarks as reliable signals of origin or quality. Similarly, AI may challenge the value proposition of copyright by blurring the lines between human and machine creativity. As AI-generated works become more sophisticated and indistinguishable from human-created works, it becomes difficult to assess the originality and authorship of creative content, potentially diminishing the value of copyright protection.

This chapter explores key elements of AI as relevant to intellectual property law. Understanding how artificial intelligence works is crucial for applying legal regimes to it. Legal practitioners, especially IP lawyers, need a deep understanding of AI’s technical nuances. Intellectual property doctrines aim to achieve practical ends, and their application to AI is highly fact-dependent. Patent law, for example, requires technical expertise in addition to legal knowledge. This chapter tracks the development of AI from simple programming to highly sophisticated learning algorithms. It emphasizes how AI is rapidly evolving and that many of these systems are already being widely adopted in society. AI is transforming fields like education, law, healthcare, and finance. While AI offers numerous benefits, it also raises concerns about bias and transparency, among numerous other ethical implications.

This introductory chapter explores the foundation of intellectual property (IP) in the United States, specifically focusing on the history and purpose of copyright, patent, trademark, and trade secret. It highlights how these pillars have maintained their utilitarian character despite major technological revolutions and emphasizes the disruptive potential of artificial intelligence (AI). As AI technologies increasingly influence creative processes, they raise significant questions about the nature of human contribution and the value of IP. This chapter introduces some of the legal implications of generative AI, including concerns over copyright infringement and the potential need for new IP protections for AI-generated works. It outlines how the rise of AI challenges the traditional metrics of progress and the standards by which human contributions are evaluated. The author suggests that rather than resisting these changes, society should adapt its understanding of IP in a way that reflects the evolving technological landscape. Ultimately, the author argues for a nuanced approach to IP law that recognizes the shifting boundaries of what constitutes valuable innovation, advocating for humility in navigating the complexities of this ongoing transformation. The discussion sets the stage for the rest of the book.

As seen in chapter 5, the Court’s expansive construction ofArticle 1 of the First Protocolto include intellectual property rights (IPRs) as a type of ‘possession’ enabled the entrenchment ofsupranational protection of companies intellectual property as a fundamental human right in Europe. Thisexamines how the ECtHR’sconstruction of companies’ IPRs as protected human rights under the Convention,in turn opened the way for a new ‘dynamic’ approach, whereby IPRs stood to be weighed and balanced against other fundamental rights, notably freedom of expression in Article 10 ECHR. The analysis of the Court’s case lawshows that, contrary to the optimistic expectations from IP scholars that human rights that could act as a counterweight to IPRs, the Court’s balancing exerciseresulted in the strengthening of owners’ intellectual property in the balance with Article 10 ECHR.

This book is based on a research project funded by the Leverhulme Trust on Intellectual Property and the human rights of corporations in Europe. The aim of the project was to investigate the history and rationale for the paradoxical extension of human rights to companies in the European Convention on Human Rights (ECHR) and to analyse the Court’s jurisprudence on protection of companies’ intellectual property in this light. The book investigates the history and rationale for the extension of human rights to’legal persons’ in the First Protocol to the ECHR (A1P1)and how the right to ’enjoyment of possessions’ has been applied by the Court to intellectual property rights (IPRs).To answer these questions, the methodology adopted in this study involves a combination of historical, theoretical, and comparative legal analysis.

This chapter reviews the Commission and Court’s case law on the application of A1P1 to intellectual property claims in light of the previous findings. It was not until the early 1980s that the first claims relating to IPRs were filed. A detailed analysis of the case law reveals how, by then, the Commission and Court had no difficulty in hearing complaints from multinational global corporations claiming to be victims of State violations of their right to enjoyment of possessions. Initial judicial deference to European domestic laws facilitated the anchoring of national legal fictionsinto the supranationallegal order of the ECHR, laying the ground for transnational protection of companies’ IPRs. The Court’s tilt away from the original moral intent of A1P1 later intensified in a series of landmark cases on patents, trademarks and copyright in which the Court adopted an autonomous reading A1P1 in line with European Union law,consolidating and deepening a liberal economic reading.

This chapter explores certain intellectual property (IP) rights arising in the context of professional tennis. It starts off with an overview of IP rights and their territorial scope. It goes on to show that IP rights are subject to a regime of ownership. The first relevant right is trademarks. The chapter explains its legal nature, and how trademark issues arise in professional tennis, particularly as regards traditional and non-traditional trademarks, colour marks, shape marks, sound marks, smell and taste marks and motion, gesture marks and holograms. The chapter then proceeds to explain the protection offered under each mark. It then goes on to explore designs, copyright and image rights/publicity rights, as well as patents and trade secrets in tennis. It explores the commercialisation of IP rights in tennis, including sponsorship agreements, licensing agreements, ambush marketing, endorsement contracts, merchandising agreements and broadcasting rights. It concludes by offering an analysis of enforcement of IP rights, contractual remedies and damages claims.