In the modern era of Intellectual Property (IP) - i.e., the last 150 years or so - it has always been a given that patents, copyrights, trademarks, service marks, design rights and all other IP rights can or will expire. Businesses, inventors and professionals in the IP field operate as they do precisely because the intangible asset protections they all focus on are impermanent or in need of regular upkeep. But what if that suddenly changed?
What if, all at once, the legal protections granted to every IP right holder under the laws of nations, provinces, regions and other jurisdictions worldwide became permanent? Some of the impacts of this alteration would be felt instantly, though most of the repercussions would not materialize for quite some time.
In any event, while the concept of "perpetual IP" is an interesting hypothetical we will explore in this blog, it is hard for us at Dennemeyer not to conclude that this particular what-if would be detrimental to creation and innovation in the long run.
The day after: initial effects of "perpetual IP"
For the purpose of this thought exercise, we will say that this change is not applied retroactively. It only affects existing patents, trademarks, designs and copyrights, and any such protections applied for and granted in the future. (New IP regulations often are not retroactive, e.g., how changes to U.S. Title 35 required by the America Invents Act only apply to patents filed on or after March 16, 2013.)
The first effects of this transformation would likely be seen in IP offices. Any patent, trademark or design right renewal proceedings would stop because the assets' protections have become permanent. Around the same time, any ongoing court cases on the validity of a given IP right would fiercely heat up. These disputes would instantly become win / lose-all situations, particularly for holders of the most lucrative patents and smaller organizations who own reduced IP portfolios.
Trademarks and copyrights would be the least affected by this revolution. Trademarks and service marks can effectively last "forever" - it is just a matter of paying the proper renewal fees every 10 years. That requirement would simply be removed in this scenario.
Copyrights, meanwhile, last for the life of the author plus 50 or 70 years in most jurisdictions, with some variations in place for work-for-hire and large corporations. According to a 2019 estimate by the United Nations, the global average human life expectancy is about 73 years. This means it already takes anywhere from 50 to 143 years for copyright to end, and potentially longer depending on local law and the individual's lifetime. (Truth be told, not many newborns seek copyrights.) In terms of value to authors (and, ultimately, their families), copyrights can seem permanent without actually being permanent.
A glut of applications
After this global change in IP law has sunk in and businesses have rewritten their filing strategies to adapt, IP offices would start seeing a flood of applications for new IP rights, particularly patents, trademarks and design rights. For patents, let us imagine that all of the application requirements and standards still apply, so a significant number of these filings would be rejected. But quite a few would go through.
Initially, it might be fascinating to see this flurry of new inventions. There could even be major breakthroughs in key fields like medicine or sustainable technology. Conversely, we might also see some less useful novelties. Overall, the result would be a narrower average scope of protection, as experienced players push through minimally patentable inventions at the earliest opportunity. Like a land run, there would be a rush of many small stakes, portioned out on a first-come, first-served basis. It would be a mixed bag, but chances are high that there would be far more trash than treasure.
New patent owners would be happy to be freed from the obligation to keep up with patent renewals. On the other hand, IP offices would undoubtedly feel the loss of revenue from maintenance fees. That said, the wider IP industry would probably flourish for a time because applicants and new owners would still need expert counsel, drafting and filing assistance, protection from infringement and other services. But how long would it be before the limitations of "perpetual IP" started to manifest?
The long-term danger to innovation
Permanent patents and design rights would surely cause the most adverse consequences over time, despite whatever short-term hassles they might remove. For starters, IP regulators would almost certainly raise all of the expenses associated with filing for new IP rights - possibly by a great deal - as they will no longer be able to collect revenue from maintenance fees. This would make patent protection far less accessible to independent inventors and smaller organizations with fewer resources at their disposal. Eventually, weaker parties would be priced out of the game as the playing field is tilted even more in favor of weightier corporations.
It also seems possible that permanent patents might make their owners more litigious - quicker to file suit against any person or organization at even the slightest perceived infringement. Third parties could buy licenses to use existing patents, as they do now, but patent holders could charge much more since their monopoly is no longer temporary. Also, the initial deluge of patent applications at the outset of this scenario would, over time, continue as a huge swell in patent troll activity, with valuable IP rights being issued to actors who do not intend to use them productively.
Over time, the IP right scene would degrade into a "rich man's game." Independent creators are likely either to forgo IP rights entirely - knowing that even if they managed to obtain them, they would probably lose any court case against a larger opponent - or duck away from any potential conflict, leaving the big operators uncontested. Muscling out poorer parties in this way would lead to the development of IP-right oligopolies or something very close to them. And rather than engage in potentially ruinous hostilities, the members of these market-dominating circles would find some way to co-exist profitably, be it through tacit understandings, gentlemen's agreements, wary observation or outright collusion.
These effects discourage or impede innovation, so we may be thankful that current IP regimes are designed to limit or counteract them. In our world, patent expiry means future generations of innovators can use old patents as the foundation for new creations without having to reinvent (or work around) the wheel every time.
Trademarks, as mentioned, can last indefinitely if steadily renewed, so their permanence would not be as troublesome. But trademark trolls, who register marks for the same frivolous or predatory reasons as patent trolls, would be just as emboldened as their counterparts.
As for copyrights, if they were permanent, books, films, music and plays would never fall into the public domain once the IP rights had expired. Think of all the classic literature and art - Dostoevsky's novels, Shakespeare's plays, Mahler's symphonies - in the public domain. Today, anyone can write a new translation of "Crime and Punishment," stage a uniquely modern production of "Macbeth" or perform "Symphony No. 6" in an exciting, unprecedented way. These new creators could then copyright their variations on the work. Though there are sound arguments to be made for extending copyright terms - such as mitigating the dilution of the original piece's quality - eliminating the public domain would likely deprive us of fascinating art that lets us experience older works in entirely new ways.
Protecting the inventive spirit
It is impossible to predict with absolute certainty how the world would transform if IP rights never expired, but there would be significant implications for businesses, inventors and society as a whole. Whether all of those changes would be wholly positive or negative is up for debate, but one thing is for sure: it would be a very different world indeed. One in which the life of the innovator would probably be more difficult, not less.
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