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In the 40 years since Bayh-Dole’s enactment, no federal agency has exercised its march-in rights. This In Focus provides background on march-in rights, analyzes NIST’s draft guidance, and reviews select considerations for Congress.

We agree that more powerful countries are likely to have more influence on the long-term future than less powerful ones, and that a country’s economic development is a strong indicator of its technological and geopolitical power. However, this does not mean that developed countries matter morally more than developing ones. Rather, it underscores the importance of global development—the process of low- and middle-income countries becoming high-income ones. Similarly, although workers in high-income countries generally have higher labor productivity, a large component of this is the place premium. That is, a worker’s productivity increases—sometimes by a factor of 15 or more—when they move from a poor country to a rich country, simply because they are being paid more for the same work. Once again, this speaks to the importance of global development and helping people escape poverty. This essay describes why it’s important for the long term future for everyone to be in a relatively high-income country, and what it might look like for global development to be a longtermist issue. Global development benefits the long-term future by increasing diversity in global institutions and reducing civilization’s vulnerability to global catastrophic risks like armed conflict and pandemics. What is global development? Effective altruists regularly talk about “global health and development” as a category of ways to do good. However, it’s clear now that development drives health much more than health drives development. Global development is the process by which low- and middle-income countries turn into high-income countries. The best modern example of this are the Asian countries of South Korea, Taiwan, Japan, and China. These have been compared with other Asian countries that were thought to be “tiger cubs” in the ‘90s such as the Philippines and Thailand in the book How Asia Works, by Joe Studwell. In this book, Joe lays out a recipe for development. Here’s the summary from Bill Gates: Create conditions for small farmers to thrive. Use the proceeds from agricultural surpluses to build a manufacturing base that is tooled from the start to produce exports. Nurture both these sectors (small farming and export-oriented manufacturing) with financial institutions closely controlled by the government. Importantly, in South Korea, Taiwan, Japan, and China, these steps were taken by relatively uncorrupted leaders who made it their life’s work to develop their home country. Other countries unable to develop had leadership who were swayed by the neoliberal free-market thinking pervasive at the World Bank and IMF at the time, or who were otherwise too corrupt or incompetent to stay true in delivering their development strategy. Global development is important for the long-term future In an EA Forum post, Beckstead defines three types of benefits that an intervention can have: proximate benefits, benefits from speeding up development, and trajectory changes. Global development would have immediate benefits for people alive today: economic development in low-income countries means that fewer people would experience poverty, illness, hunger, and violence. Speeding up development is speeding up the process by which countries become high-income, so it would ensure that people realize these benefits sooner. But most of the benefits of global development are through trajectory changes that affect the long-term future. We argue that global development creates significant long-term benefits through this route. Global development can also lead to trajectory changes in the global political environment that would not happen if the development timeline were slowed down, since such changes can be locked in over time. Global development increases diversity in global governance One of the main ways global development benefits the far future is through its impact on diversity and inclusion in world institutions. As countries get richer, their people get better educated and thus better placed to participate in institutions with great decision-making power over the world, such as multinational corporations, governments, and international organizations. Increasing the diversity of decision makers in global institutions improves the quality of world governance, which enables humanity to better navigate existential risks and other global challenges. Diversity in global institutions improves their efficacy in two ways. First, socially diverse groups outperform homogeneous groups at decision-making because they deliberate more carefully and pay more attention to facts. They also innovate more because diverse group members bring unique perspectives. Second, it improves value alignment between these institutions and humanity as a whole. It has been proposed that humanity should engage in a “long reflection” to decide what is ultimately of value before making potentially irreversible decisions regarding its future. For such decisions to reflect the values and needs of all of humanity, as many people as possible should be able to participate meaningfully in the global institutions making these decisions. Currently, about 689 million of the 8 billion people worldwide live in extreme poverty, and they cannot participate meaningfully in world governance as long as their basic needs are not met. 2.9 billion people lack Internet access, which is an important communication channel through which people make their voices heard on global issues and influence global institutions. Internet adoption is uneven across social groups: for example, women, people in rural areas, and people over age 25 are less likely to have Internet access. These disparities are especially pronounced in the 46 UN-designated Least Developed Countries (LDCs). Another barrier to diversity in global governance is the structure of institutions such as the United Nations, which is not designed to represent the general will of humanity. UN institutions represent the will of states—especially the five permanent members of the UN Security Council: the United States, the United Kingdom, France, Russia, and China. Although a diverse group of countries have voices in the UN, their citizens do not, especially in the case of authoritarian states. Global development reduces existential risks Another important way in which global development improves the long-term future is by reducing existential risks, particularly risks from pandemics and political instability. 80,000 Hours estimates that the risk of a biological existential catastrophe in the next 100 years is about 1 in 1000. Poverty makes communities more susceptible to spreading infectious diseases. For example, a study of Monrovia, Liberia, in 2014 found that people living in slums who caught the Ebola virus spread it to an average of 3.5 times more people than people living in rich neighborhoods. This is because these neighborhoods are overcrowded, contaminated, and lacking in sanitation and health care infrastructure. Also, malnutrition weakens the immune systems of poor people, thereby making them more vulnerable to disease. Raising national income improves population health and enables countries to invest more in public health infrastructure, which makes populations more resilient to potentially catastrophic pandemics. Global poverty also causes existential risk through its negative effects on international security. Many developing countries, particularly weak states, are caught in a vicious cycle of poverty, corruption, and political instability: “Inept, corrupt, or weak governance fosters poverty; widespread poverty makes effective, equitable governance more difficult to achieve; and when weak governments fail to improve their people’s lives, their legitimacy suffers.” Weak states often engender terrorism and crime because they are unable to maintain law and order in their territories. Global development in practice There are two general ways to increase the living standards of people around the world. The first is reducing barriers to immigration to high-income countries so that more people from low-income countries can move to them, take advantage of the place premium, and send money back to their countries of origin. The second is to pursue policies to increase the productivity of low-income countries so that their people are better off. Reducing barriers to migration Opening up borders in high-income countries does not decrease opportunities for those in high-income countries (although it may stress city infrastructure if not planned well). Matthew Yglesias writes about a six-month period in 1980 where 125,000 Cubans left the Cuban port of Mariel and arrived in Florida (a 7% increase in the labor workforce). These immigrants weren't particularly skilled, but no decreases in natives’ wages occurred. Yglesias explains that immigrants increase the quality and variety of goods and services available, instead of competing for native workers’ jobs. Furthermore, when the supply of hired help is increased, some college-educated women who might have otherwise been stay-at-home moms are more likely to work. Immigrants also send money back home: for example, according to the Central Bank of the Philippines, between 1975 and 1994 Filipino overseas contract workers sent remittances totaling $18.196 billion (for comparison, the Philippines is currently $46B in debt to the World Bank, IMF, etc.).10 Closing the digital divide is also one way to gain some of the benefits of open borders, by opening up opportunities for jobs in high-income countries that can be done remotely to people in lower income countries.11 Catch-up growth Economic growth improves quality of life better than public health interventions. However, it is difficult for a country to increase its income unless the country's leadership is both dedicated to this cause, and following the correct strategy towards development. As pointed out by a report from Rethink Priorities last year, land redistribution (the first step of developing a country according to How Asia Works) is unlikely to happen without some kind of major turmoil (such as a country gaining independence) as landowners have political power, even if landowners are vastly outnumbered. Here are some examples of organizations pursuing catch-up growth in low- and middle-income countries: The World Bank and IMF provide loans and advice to low and middle income countries for development. Depending on the income of the country, the loan may not have to be repaid. The Gates Foundation provides entrepreneurial support. Newer organizations working on the problem include Growth Teams and the Charter Cities Institute. Entrepreneurs such as Sierra Juice and Jaza Energy contribute by providing jobs and increasing production value of exports. Interestingly, investment in non-hydro renewable energy has actually tipped to be greater in low- and middle-income countries than in high-income countries, now that solar has become cheaper. The Center for Global Development advocates for rich-world policies that benefit low- and middle-income countries. Other organizations engage in activities such as microloans, which are shown to benefit the recipient as long as the microloan is not used to fund people joining multi-level marketing schemes. Organizations like Grameen America should stop allowing the loans to be used for this purpose. Overall there are many more initiatives meant to alleviate poverty than to encourage the economic development and democratic power necessary to end it. Given that government-led development is hard without a people in power dedicated to and capable of executing development strategy, the mechanism by which development happens is by successful businesses giving people stable jobs, especially jobs that upskill workers in their career. Conclusion While a naive application of longtermism might lead one to think that low-income countries are less important than high-income countries, this view is facile because it ignores the fact that countries can and do develop over time. Rather, longtermism speaks to the importance of developing low-income countries into high-income ones. Global development improves the long-term future of humanity by improving global governance and decreasing civilization’s vulnerability to catastrophic risks. This makes global development a pressing longtermist issue.

Furthermore, the proposed compensatory liability regime would help to solve some pressing needs of the developing countries. In particular, such a regime would provide these countries with new means of stimulating local innovation that would avoid the pitfalls and contradictions of existing design protection laws and utility model laws, and it could prove especially beneficial to efforts to exploit their comparative advantages in certain cultural industries. 188 It could also be modified to enable developing counties suitably to protect the folklore and the traditional know-how of indigenous peoples. As with small-scale innovations, the goal is to reward both first comers (in this case, the relevant indigenous community) and second comers (those who build on the community's cultural heritage), without impeding access to the pubic domain or the flow of new products. With small amounts of tinkering, a compensatory liability regime could be adapted to encourage use of traditional knowledge without denying the relevant indigenous communities the right to a fair share of the proceeds.

A world dominated by totalitarian states would be more incompetent, more war-prone, less cooperative, and more inhibitive of progress than one dominated by democratic states. Our current world is not particularly competent, peaceful, cooperative, or progressive—a totalitarian-dominated world would be worse. It would increase the risk of another collapse and extinction and could shape the future toward less desirable trajectories (Beckstead, 2013).

Totalitarian states are incompetent. They are bad at forecasting and dealing with disasters (Caplan, 2008).16 This can be seen most clearly in the great famines of Communist China and the USSR, in which millions died (Applebaum, 2017; Becker, 1996; Dikotter, 2010; Snyder, 2010). In comparison, functioning multiparty democracies rarely, if ever, experience famines (Sen, 2010). “Established autocracies” (or “personal”/“sultanist”) are particularly bad, as there are few checks or restraints on arbitrary rule and the whims and ideology of the single individual, even from other elites (Svolik, 2012). From the inside, the “inner circle” around Mao, Stalin, and Hitler seems incredibly chaotic, with elites strongly incentivized to conceal information and encouraged by the autocrat to squabble and feud—so they are divided (Conquest, 1992; Kershaw, 2008; Zhang & Halliday, 2006). If totalitarian states are worse at addressing social, environmental, and technological problems, then a world dominated by them would likely be worse at responding to risks of collapse and extinction.

What this balkanized information ecosystem portends in practice is a citizenry that could potentially have access to completely different sets of information about current affairs and perhaps a very splintered worldview of reality. Countries with authoritarian governments are already creating environments where censorship is easier achieved and occurs with far greater frequency. Already a complex network of national laws and regulations, and centrally administered firewalls is facilitating the removal, by some governments, of access to disruptive material, silencing of dissidents, and crushing of free expression online. This is likely only to intensify as the internet balkanizes even more.

(J.D. expected May 2010, Michigan State University College of Law, specializing in Intellectual Property Law; B.S. 2007, Michigan State University College of Engineering, “From Germany To Australia: Opportunity For A Second Tier Patent System In The United States,” pg online @ https://heinonline.org/HOL/Page?handle=hein.journals/mistjintl18&div=16&g_sent=1&casa_token=&collection=journals //pa-ef)

Chart removed for brevity

Patent and copyright law rely predominantly on property rules rather than liability rules.1 While this may not seem surprising for areas of law designated as “intellectual property” (IP), it turns out that copyright and patent rely more consistently on property rules than property law itself. In designating strong rights to exclude as “property rules,” Guido Calabresi and Douglas Melamed evoked the high level of protection the law provides over ownership of tangible things, especially real property.2 The law of real property nonetheless draws on the weaker protection of liability rules in many situations. These departures from property-rule protection allow for remedial flexibility in cases where the injunctive relief and punitive damages authorized under a property rule would seem disproportionate to the defendant’s culpability or create conditions for opportunism and market failure.

Under the proposed sui generis regime for subpatentable innovation, both novelty and utility would remain requirements. However, instead of non-obviousness, the applicant would need to prove the existence of an innovative contribution beyond the prior art. This contribution would presumably be of social value, which could stem from the market response.92 This proposition does not mean that every type of innovative contribution would necessarily be of social value, given that markets sometimes ignore social value.93 However, in those cases where social value is questionable, market demand results only in a liability rule and not in an exclusive property right.

This Article defines “innovative contribution” as a demonstrable technological advancement beyond the prior art that does not rise to the level of non-obviousness. Under current patent law, non-obviousness refers to situations in which, even though an existing single source does not disclose each and every component of the claimed invention, that invention nonetheless results from an unpredictable combination of components disclosed in more than one pre-existing source.94 According to the doctrine of obviousness, the question thus becomes one of assessing whether an expert in the relevant technical field(s) would find a combination of these elements to be obvious.95

What this Article suggests instead is that a better solution is to codify a liability rule to stimulate investment in subpatentable innovation from the outset. Such a regime would defend investors from the risks of forfeiture arising from a system of unbridled and efficient competition, i.e., copying; but it would not reward the innovator with a lengthy period of exclusivity, so much as with a limited form of “take-and-pay” protection under a codified compulsory license. This liability rule would thus make copiers ex post partners in the innovative venture for a specified period of time, as in the manner of a compulsory license. In this case, however, the number of partners subject to de facto compulsory licenses is unlimited in principle from the start. Revenues from a codified liability rule would constitute a market-based reward to the subpatentable innovator, because the more that copiers serve the public interest in access to innovation, the bigger the reward to the subpatentable innovator for the otherwise risky investment in such subpatentable innovation to begin with. Another way to put it is that, while compulsory licenses already exist as a remedy of last resort, this proposal would turn them into an ex ante modality of compensation for innovative contributions.

1. Short-Term Entry-Level Exclusivity Followed by a Specified Liability Period

The sole purpose of a limited period of exclusivity at the outset is to enable the subpatentable innovator to establish a viable distribution system. Given that the innovation in question is subpatentable by definition, a lengthy period of exclusive protection is inadvisable. The life cycle of technological innovation is already fast-moving as a rule,96 and the possibility of fully open competition should not be unduly delayed. Therefore, we propose the adoption of a two-year period of [*2057] exclusivity at the outset, followed by a four-year period, during which the "take-and-pay" rule applies. After this cumulative period of protection, free competition would prevail.97

We note that, already under both international15 and domestic16 patent law, an approach that makes use of liability rules is available in certain circumstances: this happens in the case of compulsory licenses, which may be issued in situations of need for pharmaceuticals and other products without the consent of the patent holder, and which require the licensee to remunerate the patent holder.17 Liability is also a structuring principle in other areas of intellectual property: U.S. copyright law, for example, has codified a compulsory license for making and distributing phonorecords.18 However, in addition to being limited to certain products, current legal embodiments of liability approaches are only available as a last resort.19 By contrast, the regime proposed in this Article would be based on a codified compulsory license from the outset.20 As further discussed below, this would reduce both uncertainty

[From Cite]

(Peter K. Yu. Professor of Law, Professor of Communication, and Director, Center for Law and Intellectual Property, Texas A&M University, “Data Producer's Right and the Protection of Machine-Generated Data,” pg online @ https://scholarship.law.tamu.edu/facscholar/1318/ //pa-ef)

When overlaps arise, the proposed right could lead to regime clashes and overprotection.271 Such clashes and overlaps, in turn, would undermine the protection offered in preexisting intellectual property regimes, especially in relation to their limitations, safeguards, and flexibilities.272 If these overlaps are to be avoided, commentators have suggested the need for preemption tools.273 As Hugenholtz observed, "The only way to prevent the data right from becoming an all-encompassing 'super-[intellectual property] right' would be to categorically exclude all data that (possibly) represent subject matter protected under traditional [intellectual property] regimes: not only copyright, the database right and neighboring rights, but also design right and perhaps patent law."274

(Laura, Professor of Law, College of William & Mary, “Overlapping Intellectual Property Doctrines: Election of Rights versus Selection of Remedies,” pg online @ https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2759&context=facpubs //pa-ef)

From an intellectual property owner’s perspective, the overlap between or among regimes is not typically a cause for concern. Seeking protection under more than one regime is a belt-and-suspenders form of enforcement, allowing the intellectual property owner to resort to a second mode of protection should the first fail or expire. But from an intellectual property user’s perspective, overlapping protection schemes can make it more difficult for competitors to determine what they can do. Material that is the subject of an expired design patent, which patent law would put in the public domain, may not be free to use without restrictions if courts vindicate continuing trade dress rights in that same material. When this occurs, it is not surprising that an intellectual property user would feel as if the end of the design patent term has little practical effect. Courts could, of course, choose to do nothing on the grounds that since the doctrines permit an overlap of rights, it would be improper to impose a limitation. This approach, however, is unsatisfying, as it minimizes very real concerns about the proper scope of intellectual property protection. Alternatively, courts could, as some commentators have suggested,1 require intellectual property owners to elect among doctrines—that is, to choose at the outset which form of protection they will employ or to relinquish rights in one form if another is chosen. Requiring the intellectual property owner to elect among doctrines, however, is difficult to square with the existing federal intellectual property scheme, in which Congress has contemplated that overlapping rights will exist. Moreover, requiring commitment to only one form of protection, whether explicitly or by default, requires careful consideration of the nature of future uses, income streams, and doctrinal contours, all of which may be difficult to predict ab initio. The courts, for their part, have presented what on their face seem to be mixed messages in this regard. Many courts, including the U.S. Supreme Court, have held that there is no reason to limit intellectual property owners to one regime—that simply because something is eligible for copyright protection does not mean that it isn’t also eligible for design patent protection. On the other hand, many courts—again, including the U.S. Supreme Court—have rejected attempts by intellectual property owners to assert another form of intellectual property protection once one form is unavailable for particular subject matter.2

5. Demand-Side Features—Positive Spillovers Even if uniform rights suited information producers to a tee, a good argument for tailoring rights could be derived from evidence of certain positive externalities, or spillovers, on the demand side. Professors Brett Frischmann and Mark Lemley argue separately and together that efficient patent and copyright law must be limited and leaky in order to encourage or allow certain types of uncompensated demand-side sharing of valuable information.240 Their arguments call for tailoring to ensure that the law is particularly permissive with respect to patented or copyrighted information that functions as “infrastructure.”241 In particular, Frischmann argues that [footnote omitted] information should be managed as a commons rather than through private, exclusive rights when:

(1) The resource may be consumed nonrivalrously; (2) Social demand for the resource is driven primarily by downstream productive activity that requires the resource as an input; and (3) The resource may be used as an input into a wide range of goods and services, including private goods, public goods, and nonmarket goods.242

3. Overlapping Rules and Rights Two common legal features that intellectual property owners factor into their appropriability calculus is the availability of other legal rights of exclusion, such as trade secret, trademark, or contract law, and regulatory requirements in the marketing and distribution of creations or innovations. Patent and copyright law already have been tailored to respond to these features in some respects. For example, with respect to overlapping rights, Professor Jerry Reichman has pointed out, trade secret law provides a liability-rule substrate to the property-rule regimes of patent and copyright.229

As important, product differentiation strategies supported by trademark law supply an important source of power over price. The effects of trademark and trade secret protection may be sufficient to induce the desired level of [footnote omitted] investment even in the absence of copyright or patent rights in some cases.230 Moreover, the exclusivity provided by copyright or patent rights facilitates the producer’s ability to establish strong, highly distinctive marks.231 This effect likely explains why consumers continue to purchase branded over-the-counter drugs such as Tylenol® or Advil® at a significant premium even when they have available cheaper generic drugs that are chemically perfect substitutes.232 In markets in which this effect is particularly strong, the level of protection may be reduced by, for example, reducing the term of protection without significantly reducing the incentive effects the protection supplies. One might similarly analyze the presence or absence of effective technological controls that perfect excludability in the absence of exclusive rights.233

[*2031] The second element is a liability rule5 (also known as a "take-and-pay rule").6 The liability rule envisioned in this Article would be used to protect subpatentable innovation under a uniquely designed regime, also known as a sui generis regime. The proposed liability regime would thus build upon the second of two categories of entitlements initially identified by (then) legal scholars Guido Calabresi and Douglas Melamed,7 rather than relying on the first category - exclusive property rights - as both classical and contemporary intellectual property regimes have repeatedly done.8

[*2032] This Article contends that risky investments in subpatentable innovations - defined as technical innovations that fail to meet the non-obviousness test of patent law9 - would greatly benefit from a carefully constructed sui generis regime of intellectual property protection. Such a regime should not deter competition by dint of an exclusive property right, like that of patent law.10 It would, instead, offset the risky investment (and likely possibility of failure) in subpatentable innovation at the outset by subjecting qualifying innovations11 to a liability rule for a short period of time,12 rather than an exclusive property right.13 Under this approach, competitors would remain virtually free to copy or duplicate the qualifying subpatentable innovation once put on the market, as occurs at present but such competitors would also be required to pay a small royalty from their sales to the originator, for a relatively short period of time.14 Free market [*2033] success of such subpatentable innovations would thus reward the innovators' risky initial investments with a small percentage of the competitors' sales.

The economic logic underlying this model is that the providers of microbial materials would presumably obtain more potential reciprocity benefits from the vast upstream research opportunities generated by the semicommons than would accrue from operating in isolation. But fears of losing unknown future commercial opportunities could undermine the prospect of these potential research gains, so we address this concern directly with a built-in provision for benefit sharing from unknown future downstream commercial applications. That is, we would build a so-called “compensatory liability rule” for downstream commercial applications into the system, yielding equitable compensation for the providers or their designate representatives under international law, while fulfilling international obligations under the CBD. This component thus gives providers a means of securing equitable compensation from future commercial applications, unknown or unlikely at the time of deposit, that ultimately resulted from research uses of the deposited materials. A liability rule means that one may freely take the materials for any research purpose, without need of any permission to use, on condition that a duty to pay equitable compensation arises if and when the application itself accrues commercial gains. It is neither an “absolute permission” rule (i.e., comparable to an exclusive property right) nor a pay-per-use rule; it is a “take and pay” rule, as I will explain in a moment.

Recall that only about one percent of the world’s existing microbial population has actually been identified. Most of those identified microbes possess largely unknown properties and characteristics of no commercial interest. Some of these are held by private industry in collections whose contents have not been publicly certified. One may accordingly describe the bulk of the holdings in existing public microbial collections as “pre-competitive” in the sense that they have elicited little active scientific interest at the present time and—perhaps for that very reason—have no known or likely high payoff commercial applications.

These cases are still ongoing, but the legal scholarship around them seems to suggest that the outputs of generative AI systems are unlikely to constitute infringement --- leaving the question of whether the remedies we grant for infringement when it does occur are commensurate with the harms suffered by artists & other creators. As mentioned earlier, fair use remedies are typically statutory damages or injunction, which in Sobel’s view “...overcompensate for the harms authors are likely to suffer from having their work included in training datasets.”72 Guido Calabresi and Douglas Melamed describe entitlements as being protected by the state in two ways: “property rules” or “liability rules.”73 “Property rules” which are currently used in the U.S. copyright system protect entitlement holders from [footnotes omitted] nonconsensual takings via injunctions or punitive damages, and are aimed at fully undoing takings.74 Such strong remedies enable entitlement holders to “set the price” of their own property, and are “premised on the assumption that the ideal allocation will occur if private parties bargain over resources.”75 Liability rules, on the other hand, permit an entitlement to be transferred in exchange for a fee set by a court or regulatory body using an “external, objective standard of value.”76 Mark Lemley and Philip Weiser point out that a major justification for liability rules is that transaction costs can impede efficient bargaining under property rule regimes, regardless of whether the property in question is real or intangible.77 Given the nature of AI development, where massive data sets are used and bargaining with countless individual entitlement holders would be incredibly costly, some have argued that the adoption of liability rules may be an effective way to balance the equities, since this would promote AI development while compensating entitlement holders in a standardized way. 78

The proposed compensatory liability regime was articulated with the historical problems of the developed industrial world in mind, but it will prove beneficial in other contexts as well. For example, the development of the Internet, digitization, and electronic commerce pose new challenges to small scale innovation. These advances reduce the cost of copying, shrink lead time, and increase the risk that small-scale innovators will take matters into their own hands and create totally unregulated states of artificial lead time through encryption and adhesion contracts. If enforceable, these electronically imposed standard form contracts could degenerate into a basis for asserting private intellectual property rights that override all the public-interest safeguards that had ensured access to the public domain under traditional intellectual property laws. 187 There are serious risks that these standard-form adhesion contracts could thus balkanize the information commons and reintroduce conditions that impede the flow of information.

However, the enactment of a general purpose innovation law on modified liability principles would lessen these risks because it would offer those who innovate in this environment a way to alleviate market failure without impoverishing the public domain. Indeed, the convergence of telecommunications and digital technologies may itself contribute to the operation of the liability regime. Online communication will expedite claim registration, help innovators find the know-how they need, facilitate negotiations, and promote the use of standardized terms. Monitoring use and collecting royalties will likewise prove easier to organize and less costly to implement online.

The proposal set out below44 introduces a codified liability rule that would impose a built-in compulsory license favoring subpatentable innovators. Unlike patents or other exclusive rights regimes, however, this proposal does not give rise to the blocking effects of a regime of exclusive rights, nor does it discriminate against fields of technology, as is the case with most sui generis regimes.45 So far, intellectual property policy has proved to be a poor fit for certain types of socially valuable innovations that depend on market-based results, thereby often yielding chronically inadequate incentives at the outset. This occurs when would-be investors in innovative and socially valuable products cannot or do not anticipate recouping their front-end costs owing to the risk of unbridled free competition,46 which may obviate any suitable reward for their initially risky investments.47 One recent example in the public [footnote omitted] spotlight was the “structure, sequence and organization” of computer programs,48 which in most non-patentable cases may no longer qualify as copyrightable subject matter in the aftermath of the recent Supreme Court decision in Google v. Oracle. 49 In other subject matter areas, even when an intellectual property right becomes theoretically available, incremental innovation in certain socially valuable goods may remain subject to a risk of underfunding and underproduction through current market conditions. A noteworthy example of this latter situation arises in research and development (“R&D”) on certain chronically underfunded diseases (e.g., neglected tropical diseases50 and rare [footnote omitted] diseases51), where market limitations inherently restrict the incentives flowing even from an exclusive right.52

In still other cases, there are subpatentable (or non-copyrightable) goods “bearing know-how on their faces”53 that are so easily copied that investors cannot even rely on traditional lead time advantages to recover their costs or enable profits.54 The classic example is that of sui [footnote omitted] generis design protection laws.55 These laws traditionally give industrial designers an exclusive right that confers relatively short-term protection, with a pathway to trademark protection, which in turn can potentially last forever.56 Design protection requires a certain amount of creativity and innovative capacity that most people lack while recognizing that, once designs enter the market, they are easily duplicated because each design typically bears the designer’s know-how on its face.57 This factor can even drive the initial innovator out of the market when competitors have greater market power. Hence, in order to stimulate sufficient investment in innovative designs, diverse laws in different countries give designers a period of lead time on the market, which can last as little as three years (as is the case under European [footnotes omitted] Union law for unregistered designs)58 or as long as at least ten years under the TRIPS Agreement.59