Needs and Challenges of a Responsive IP System

This chapter discusses a hypothesis according to which the IP system needs to be responsive, i.e. to have the ability to quick and positive reactions when confronted with some form of challenge. The question of responsiveness goes above the question of the correct calibration of IP rights in two ways. First, it is more dynamic, presuming that this correct calibration is not a fixed equilibrium but evolves because of structural reasons or circumstantial occurrences. Second, the question relates not only to the endogenous flexibility of these rights (i.e., the flexibility of the IP rules themselves) but also exogenous flexibility (i.e., the adaptability of the legal framework itself).  The chapter first describes the assumptions upon which this hypothesis relies: namely, the IP framework appears ill-adapted to face the upcoming technological, economic, and societal challenges. Indeed, even though the correct calibration of most IP rights is not a fixed but a moving target (the speed of which is accelerating), the IP framework is shaped around rigid and monolithic rights.  Responsiveness is then investigated as a potential response, starting with a presentation of the existing legal literature before explaining more in detail the different dimensions that a responsive legal system encompasses and lastly taking competition law as an example of a responsive area of law. Lastly, the chapter reflects on the needed changes and challenges and risks raised by a more responsive IP system.