IP and the Lens of Complexity

40 Pages Posted: 23 May 2013

See all articles by Michal Shur-Ofry

Michal Shur-Ofry

Hebrew University of Jerusalem, Faculty of Law

Date Written: March 3, 2013

Abstract

This article examines the intersection of intellectual property and complexity theory. Complexity focuses on systems comprised of a large number of interacting components. It explores the rules governing their behavior and development, and is currently used to analyze and explain a range of human, social, economic and natural phenomena. Its interdisciplinary insights apply to a host of systems and networks: from biological and ecological systems, through the social system, to the internet and other communication networks.

Intellectual property is a natural candidate for applying complexity analysis. Its subject matters interact to create networks that abide by the rules governing complex systems. Cultural works protected by copyright, trademark protected brands, as well as patent protected technologies are all linked through members of society, in a manner which forms two-sided networks susceptible to complexity analysis. Among others, these networks obey the laws of innovation diffusion, social influence, and herd behavior. Moreover, the paradigms of "incentive" and "reward" that lie at the heart of traditional IP theory are directed towards the social system, itself a non-linear, complex system.

Concentrating on complexity as a social phenomenon this article demonstrates how specific notions of complexity can illuminate particular norms and dilemmas in the various branches of intellectual property: from patent's non-obviousness requirement, through trademark dilution doctrine, to the puzzle of copyright and television formats. The article further argues that complexity does not merely provide new tools for solving old problems, but offers a new prism for framing such problems, and can also shed new light on the traditional meta-narratives of IP. It concludes that a complexity perspective can enrich IP discourse with a non-reductionist theoretical outlook, and may bring intellectual property theory and doctrine closer to real-world settings.

Keywords: complexity, non-linearity, complexity reduction, innovation diffusion, patents, commercial success, trademarks, dilution, distinctiveness, genericism, right of publicity, copyright, television formats, intellectual property theory, incentives

Suggested Citation

Shur-Ofry, Michal, IP and the Lens of Complexity (March 3, 2013). IDEA: The IP Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2268867

Michal Shur-Ofry (Contact Author)

Hebrew University of Jerusalem, Faculty of Law ( email )

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