Does Technology Trump Intellectual Property?: Re-Framing the Debate About Regulating New Technologies

Abstract:     
Does technology trump intellectual property rights (IPR)? In the Metro-Goldwyn-Mayer Studios v Grokster case, Justice Breyer believes this to be so. This article will analyse whether Justice Breyer’s belief has valid legal and empirical bases in light of the different cases and legislations that seek to resolve the challenges brought about by new technologies vis-à-vis IPRs. This article argues that the proposition that law favours technology over IPRs requires further qualification in order to prevent one from falling into the traps of technological determinism, instrumentalism and the belief in the neutrality of technology. A re-framing of the debate is needed which goes beyond the traditional technology versus IP dichotomy and focuses on the main goal of technological development and IP protection, which is to advance innovation in its broadest sense.

Keywords: technology, intellectual property, innovation, technological determinism, debate

JEL Classification: K10, K39

Accepted Paper Series