The conventional wisdom is that intellectual property (IP) is good for jobs. Indeed, according to legislators and the US patent office, IP ‘creates jobs’. But this is not quite right. A primary function of IP is to increase the amount of innovation in the economy. Yet a significant subset of the innovations protected by IP rights, from self-service kiosks to self-driving cars, are in fact labor-saving and indeed labor-displacing. They reduce the amount of paid human labor required to complete a task. Therefore, to the extent IP is successful at incentivizing innovation, IP actually contributes to job loss. More precisely, IP contributes to what this Article terms ‘technological un/employment’: job loss and job creation resulting from technological change. Commentators concerned about the ‘end of work’ have suggested using taxation to slow down the pace of automation and to provide aid to displaced workers. But this Article yields another surprising insight: IP law itself could be designed to effectuate similar goals, either alone or in coordination with the tax system. For example, rather than taxing businesses that employ robots, legislators could deny patents on robots or tax IP owners and use the proceeds to fund social programs or a universal basic income. IP’s relationship to technological un/employment and the implications for public policy may seem evident in hindsight. Yet the connection has been overlooked. Lawyers and academics who study IP must pay more attention.
Camilla A Hrdy, Intellectual Property and the End of Work 71 Florida Law Review 303 (2019).