Robin Feldman
Volume 76, Issue 1, 47-114
Our implicit image of progress and the standards we use to calibrate human contribution to progress are quietly at risk from the onslaught of artificial intelligence (AI). AI has the potential to significantly shrink the pool of creative work that is protectable by intellectual property (IP) law and the range of information that is protectable, as well as shrinking the value proposition of IP regimes themselves.
As society faces this changing landscape, we must tread carefully to distinguish fears about AI from the task of defining the boundaries of intellectual property, whose theoretic concepts aren’t designed to bear such weighty burdens. We also should be wary of our all-too-human instinct to insist on the primacy of our individual contributions to innovation. What we choose to protect must be bounded by the value of the contribution. As that value shifts, in light of what AI makes commonplace, so must our boundaries shift for what we consider extraordinary.
Adaptation does not require reimaging the field. Rather, paths forward can be understood through the Allegory of the Diamond, described in Part IV. Law can limit the supply of products subject to protection, casting the net only around the remarkable, thereby preserving value and facilitating a coordinated body for providing a “Good Housekeeping Seal of Approval.” Together, these two paths would mitigate problems threatening intellectual property regimes.
One can predict much wailing and gnashing of teeth as we step into this iteration of human-technological interaction. In response, one could borrow a concept from both existential philosophers and their arch opponents, theologians: a little humility in the enterprise is due.