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Arup, Christopher --- "Split Entitlements? Intellectual Property Policy for Clusters and Networks" [2009] ELECD 446; in Arup, Christopher; van Caenegem, William (eds), "Intellectual Property Policy Reform" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Policy Reform

Editor(s): Arup, Christopher; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441637

Section: Chapter 14

Section Title: Split Entitlements? Intellectual Property Policy for Clusters and Networks

Author(s): Arup, Christopher

Number of pages: 21

Extract:

14. Split entitlements? Intellectual
property policy for clusters and
networks
Christopher Arup

I. INTRODUCTION
Between the employer and the employee, or the principal and the contractor,
the law largely leaves the disposition of intellectual property use rights and use
of information to freedom of contract. Innovation policy has focused on the
incentives the firm receives to innovate. If the position of the inventive or
creative worker is considered, the focus is on the incentives that are provided
within the firm. This chapter engages with cluster theory to argue that a pro-
innovation policy should ensure that the worker is free to use intellectual prop-
erty with new firms. The focus is on mobility and the circulation of
knowledge. The original firm should only hold the rights for the purposes for
which it directed or commissioned work. Non-disclosure and non-competition
clauses should be invalid, except for protection of a carefully circumscribed
category of trade secrets. This policy would require that freedom of contract
was checked. Binding legislative provisions would be needed, not merely
default rules; the courts could not be expected to further this policy through
the common law.


II. POLICY CONTEXT
A. Cluster Theory

The best intellectual property focuses on the context in which rights apply.
Crucial to the impact of policy is interaction with the process of innovation.
Characterised as an instrumental approach, it has to be grounded. Yet there is
still a tendency for policy making to proceed from basic principles.
Commonly, the view is that ...