The New Constitutional Architecture of Intellectual Property

This chapter sketches some of the central features of the transforming constitutional architecture of intellectual property. It studies the characteristics of this constitutional development from the perspective of social acceleration, in particular. This enables the discussion of novel developments of IP, beyond the traditional constitutional treatments and the idea that human rights could re-establish the lost balance of IP. The chapter 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, it contends that the judicature, the executive, and the private sphere increasingly replace legislators as the key drivers of IP policies; that locking-in mechanisms like the three-step test and international investment agreements (IIAs) provide the needed stability for the acceleration developments; and that the notion of structural proprietarian bias captures the spirit of the prevailing multipolar IP constitutionalism.