For the conference on Innovation Law Beyond IP at Yale Law School
I am thrilled to be
taking part of the Innovation Law
Beyond IP conference next week at Yale Law School. Thank you to
Lisa, Amy and Kiel for organizing such an exciting event. To me, the conference’s title reflects with precision how we
should be thinking about innovation policy. In my recent book, Talent
Wants to Be Free: Why Should Learn to Love Leaks, Raids and Free-Riding I
argue that human capital law - at the intersection of intellectual property,
employment law and antitrust – is one of the most important frontiers for
innovation policy. The book challenges conventional wisdom about competition,
secrecy, motivation, and creativity and suggests that we rethink the boundaries
we’ve drawn between human capital controls and openness. Balkinization featured
an exchange
Kiel and I did about the book.
In my new
article, The New Cognitive Property, I argue that contemporary
policy is grounded in the conviction that not only the outputs of
innovation – artistic expressions, scientific methods, and technological
advances – but also the inputs of innovation – people, their skills,
experience, knowledge, professional relationships, creative and entrepreneurial
energies, and the potential for innovating – are subject to control and
propertization. In 1964, Charles Reich wrote “the
institution called property guards the trouble boundary between individual man
and the state.” Today, as we guard the boundaries between individual, market,
and state, we face a reality of not only the expansion of intellectual
property but also cognitive property.
At the same time, the field of human capital law is largely
neglected in innovation policy debates. Regulatory and contractual controls on
human capital – post-employment restrictions including non-competition contracts,
non-solicitation, non-poaching, and anti-dealing agreements; pre-innovation
assignment agreements of patents, copyright, as well as non-patentable and
non-copyrightable ideas; and confidentiality and non-disclosure agreements and
trade secrets enforcement against former insiders - are fast growing frontiers
of market battles. The expansion is textured:
·
subject-wise, the expansion of controls into the
intangibility spectrum that propertizes knowledge that would fall outside the
scope of patent and copyright, as captured by the rise in contractual clauses
assigning all innovation “whether patentable or non-patentable.”
· time-wise, the
expansion of ownership over future innovation, as well as attempts to go back
in time and capture prior knowledge that an employee had when joining the
company.
· scope-wise,
demonstrates “the non-compete thicket” - the colossal rise in the use of
non-competes along with a shift from individualized controls to meta-controls,
or cognitive cartels, as evidenced in the current class action against
high-tech giants, including Apple, Google, Intuit, and Pixar, which agreed to
not hire each other’s employees.