The New Constitutional Architecture of Intellectual Property

Abstract

The chapter sketches some of the central features of the new constitutional architecture in the context of intellectual property (IP). In particular, I will study the characteristics of the related constitutional developments from the perspective of social acceleration. This zooms the focus into novel developments of IP beyond mainstream constitutional discourses. Politics under permanent social acceleration – lurching from one crisis to the next – has transferred decision-making from notoriously slow legislatures to more rapid transnational networks, executive governance, and privatised regulatory practices. The chapter also draws from the school of new constitutionalism. It argues that the prevailing new constitutionalist architecture of IP is best understood through the role of constitutional norms in both accelerating and decelerating change. In particular, the chapter argues that the judicature, the executive, and the private sphere continue to replace legislators as the critical drivers of IP policies, that lock-in mechanisms such as the three-step test and international investment agreements provide the stability needed for acceleration, and that the notion of structural proprietarian bias captures the spirit of the prevailing multipolar IP constitutionalism.