World IP Day: Safeguarding Intellectual Property for a Thriving Tech Ecosystem
Working in the tech industry, I would be remiss if I allowed World Intellectual Property Day to go by without a nod or a tip of the hat to the fact that without IP (intellectual property), and strong, reliable, good-faith IP protections, the tech industry as we know it today would not exist. That’s because without an IP protection regime built on strong, reliable, good-faith foundations and enforcement, patents wouldn’t be worth the paper they are printed on, ideas would be nearly impossible to protect and monetize, technology licensing and interoperability would be a nightmare, and there would be little profit motive driving funding to R&D and innovation. Without reliable IP protections, the startup ecosystem would be barren, R&D funding anemic, the state of innovation decades behind where it is today.
In other words, everything we have come to rely on in our modern lives, tech-wise, relies on a simple, almost entirely invisible framework of IP protections and enforcement that we scarcely ever have to think about. And just as we take it for granted that the technology that surrounds and assists us 24/7 will work as intended, we take it for granted that the regulatory framework that makes this ecosystem possible will also continue to work as intended. Why wouldn’t we? If a system has been so successful for this long, it seems safe to assume that it isn’t all that vulnerable to attacks or erosion or disrepair anymore. But as we have learned in recent years, those types of assumptions aren’t all that safe to make anymore: As resilient as they may seem, all of the systems and frameworks we take for granted are inherently vulnerable, and if we don’t take proactive steps to keep them safe, someone or something always comes along to break them. And so, just as Earth Day a few days ago was an opportunity for us to appreciate the importance of taking care of our one and only planet, and consider ways to protect it from a breadth of ecological catastrophes, World IP Day is an opportunity for us to appreciate the importance of taking care of the U.S. IP system and consider ways to protect it from its own threat matrix of potential catastrophes.
No need to launch into a TL;DR deep dive or a full SWOT analysis today. If you only take one thing away from reading this, let it be an awareness that the U.S. IP system’s vulnerabilities are, as we speak, being probed and undermined by regulatory, legislative and strategic efforts. Make a mental note to keep an eye out for some of those efforts and you will start to see them pop up in your newsfeed. I can also provide you with a brief summary of what to keep an eye out for:
The low hanging fruit in the U.S. IP system’s threat matrix is, of course, China. China has patiently spent the last decade or so simultaneously working to broaden its foothold in international standards setting bodies, to undermine U.S. technology leadership around the world, and to use its considerable influence to weaken IP protections in the West to gain a strategic advantage over its U.S. and European rivals. We have even seen China attempt to weaponize regulators, legislators, media pundits, and even rival Western tech companies in their efforts to undermine IP protections in the U.S. and Europe, particularly with regard to tech companies, and the more foundational the technologies, the better.
While many of those weaponization efforts have failed thus far, China’s strategy may have shifted attitudes just enough to poison the well from within: The most direct emerging threat to IP protections in the U.S. is now domestic in nature. (Yes, the call is coming from inside the house now.) A presumably well-meaning but misguided cadre of regulators and legislators appears to have tripped down a meandering rabbit hole of reform thinking aimed at “fixing” (or modernizing) the U.S.’s system of IP protections, and somehow rescue it from itself. The problem, obviously, is that it doesn’t need fixing or rescuing or modernizing.
The danger with this push for reform for reform’s sake is that the IP system is as critical to the US economy as it is easy to unravel from within. The ripple effects of even minor changes to its equilibrium, like with all complex, finely-tuned, symbiotic ecosystems, could blow the rails right out from under US innovation, disincentivize investments in tech startups (and R&D as a whole), and damage one of the most critical drivers of the U.S. economy, job creation, and economic prosperity. (To say nothing of how breaking the wheel of U.S. technology investments and innovation would shift the balance of power in the world squarely towards China for at least the next decade.) None of these outcomes would be positive, no matter how well-intentioned the motivation behind them may be.
To be clear, the question isn’t whether the U.S. (and more broadly, the world) can make a case for “reigning in“ tech giants (presumably by way of thoughtfully considered and carefully calibrated regulatory adjustments). That is a separate discussion that touches primarily on consumer protections, civil rights, geopolitical shifts, and antitrust concerns. And that is precisely the problem: By conflating all corrective legislation and regulation aimed at “reigning in big tech” into a all-inclusive soup of corrective action, legitimate regulatory adjustments to new tech-driven paradigms can easily become Trojan horses for action designed to undermine the U.S. IP system. It is therefore crucial that U.S. legislators, regulators (and voters) understand the importance of segregating these challenges and the solutions required to address them so as to avoid breaking the vital parts of the economic engine that actually work and require no corrective action.
It bears saying that the U.S. IP system isn’t broken. Quite the contrary, it continues to be the clearest example of how healthy regulatory equilibrium can, by systematically protecting IP, reward innovation and drive competition in an open market of ideas. It continues to be one of the U.S.’s most critical economic and strategic assets. This is why great care must be taken to preserve, protect, and insulate it from unwarranted regulatory action, unintended regulatory backsplash, and clumsy, even reckless overcorrections. Recent statements and actions by the FTC and some lawmakers on Capitol Hill suggest that a national push for a first, do no harm and an if it isn’t broken, don’t fix it approach to all regulatory reforms might be needed, but particularly as it relates to IP protections. This is all the more relevant as generative A.I. begins to weave itself into every layer of our economy. If for no other reason than to properly manage and derisk the integration of A.I. in tech, media & entertainment, banking, transportation, manufacturing, agriculture, healthcare, transportation and shipping, telecoms and public safety, maintaining a strong, stable and resilient IP framework is going to be more critical than ever.
Happy Earth Day and World Intellectual Property Day.