Intellectual property and the rise of private ordering
In recent years we have witnessed a dramatic increase in the use of contracts for determining the terms of access to creative works and inventions, thus affecting the de facto status and scope of intellectual property rights. Digital networks offer new opportunities for content providers and innovators to contract directly with the end users of their respective works at low cost. At the same time, however, private ordering is employed by rightholders for expanding the rights awarded to them by intellectual property laws, such as limiting the right to sell a used copy of the work, or lend it to others. On the other hand, license agreements are employed by individual creators, businesses and NGOs to promote open access and open content agenda, shrinking the rights awarded by IP. Even in areas traditionally governed by patents alone, contracts are becoming more pervasive. Patentees, for instance, are increasingly using license agreements containing ‘no challenge’ clauses that either bar or otherwise deter a licensee from challenging a licensor of intellectual property rights. By contrast, some public institutions in biomedical research are conditioning the license on assurances that grantees and licensees will not assert patents to impede further scientifi c inquiry.