Expansion of IP fragments the public domain.

A. The Societal Effect of Propertization and Fragmentation of Intellectual Property Rights

1. Fragmentation of the Public Domain

The expansion of intellectual property law fragments the domain of intellectual property goods. The profusion of intellectual property rights divides the ownership of expressions, innovations and words in two principal ways.

First, by creating new intellectual property rights on material previously outside the scope of intellectual property law, new rights of exclusion are established on subject matter that was previously governed by unrestricted rights of use. For example, new database protection legislation provides effective exclusion rights to the creators, for "sweat of the brow" compilations that were previously available for free use.168

Second, by enhancing and adding to existing protection, exclusionary rights are added to the existing bundle of rights associated with those products. For instance, after copyright added the moral right of alteration to the copyright bundle, a buyer of a copyrighted work became confronted with an additional restriction on the use of the property rights that remain exclusive to the copyright holder.

To understand the full complexity introduced with the expansion of intellectual property law, one must appreciate that a discrete product consists of various inputs, each of which is subject to individual property rights that are not necessarily held by one individual or institution.169 The next section explores this issue in more detail.