It has always been assumed that all IP rights, including patents, copyrights, trademarks and design rights, can and will expire in the contemporary era of intellectual property (IP), which spans the previous 100 years or so. Because the intangible asset protections that businesses, inventors, and IP specialists all concentrate on are transient or require ongoing maintenance, they all function as they do.
What if the legal protections provided to each and every owner of an intellectual property right under the laws of all countries, provinces, regions, and other jurisdictions worldwide suddenly become perpetual? Some of the effects of this change would be felt right away, but the majority of the effects would take some time to manifest.
In any case, even though the idea of "Forever IP" is an intriguing hypothetical , it is difficult for us not to draw the conclusion that in the long run, this particular what-if would be harmful to invention and innovation.
We shall assume that this change is not made retrospectively for the sake of this exercise. It only affects current patents, trademarks, designs and copyrights, and any similar protections applied for and granted in the future. (New IP restrictions are frequently not retroactive; for instance, the America Invents Act's modifications to U.S. Title 35 only apply to patent applications filed on or after March 16, 2013)
The IP offices would probably experience the earliest effects of this change.
The assets' permanent protections would end any ongoing patent, trademark, or design right renewal proceedings. At the same time, any continuing legal disputes over the legality of a certain IP right would become extremely heated. For those who have the most valuable patents and smaller companies with smaller IP portfolios, these fights would quickly turn into win-or-lose-all situations.
Copyrights and trademarks would be least impacted by this revolution. If the appropriate renewal fees are paid every ten years, trademarks and service marks can essentially last "forever." In this case, the need would simply be dropped.
In contrast, copyrights generally have a lifespan of the author plus 50 or 70 years, with certain exceptions made for work-for-hire situations and huge organisations. As per an estimate the average human life expectancy worldwide will be around 75 years. Accordingly, it already takes between 50 and 143 years for copyright to expire, and it could take even longer depending on local law and the lifespan of the individual. (In actuality, few newborns request copyrights.) Copyrights might appear permanent without actually being permanent in terms of the value they provide to authors (and, ultimately, their families).
IP offices would begin to experience a deluge of applications for new IP rights, particularly patents, trademarks, and design rights, after this global reform in IP law has taken hold and firms have revised their filing methods to accommodate. Let's assume that all of the application criteria and standards still apply to patents, in which case a sizable portion of these filings would be denied. But many would still succeed.
At first, the swarm of new inventions could be interesting. There may even be significant advances in important areas like sustainable technology or medicine. On the other hand, less valuable inventions might also be introduced.
In general, this would lead to a shorter average scope of protection as seasoned players rush to patent minimally viable technologies as soon as possible. Similar to a land rush, there would be a rush for several minor stakes that would be distributed according to first-come, first-served. Although it would be a mixed bag, there would probably be far more trash than treasure.
The freedom from having to keep up with patent renewals would be welcomed by new patent owners. However, IP offices would surely suffer the loss of maintenance fee income.
However, the broader IP business would presumably continue to grow for a while because new owners and applicants would still want professional legal advice, assistance with drafting and filing documents, infringement protection, and other services. But how long would it take for the "Forever IP" restrictions to become apparent?
Permanent patents and design rights would undoubtedly have the worst long-term effects, notwithstanding any immediate inconveniences they might eliminate. First off, since they won't be able to collect money from maintenance fees, IP regulators will almost probably increase all of the costs connected with applying for new IP rights - possibly significantly. As a result, independent innovators and smaller businesses with fewer resources would have much less access to patent protection.
Eventually, as the playing field becomes even more skewed in favour of larger firms, weaker parties would be priced out of the game.
Additionally, it appears that owners of permanent patents may become more litigious, more eager to sue any individual or group at the least suspected violation. Like they do now, third parties might purchase licences to use already-issued patents, but since the monopoly is permanent, patent owners could demand significantly higher fees. Additionally, the initial flood of patent applications that occurred at the beginning of this scenario would eventually continue as a large upsurge in patent troll activity, resulting in the issuance of priceless IP rights to individuals who do not plan to use them effectively.
The IP right scene would eventually deteriorate into a "rich man's game." Independent creators are more likely to either completely forego their IP rights because they understand that even if they were to obtain them, they would likely lose any legal battles they entered into with a larger opponent, or to avoid any potential conflict altogether, leaving the large operators unopposed. By excluding less powerful parties, IP-right oligopolies or entities very similar to them would emerge. The members of these market-dominating circles would instead find a profitable method to coexist through tacit understandings, gentlemen's agreements, careful observation, or blatant complicity rather than participate in potentially destructive hostilities.
We can be grateful that current IP laws are set up to restrict or mitigate these consequences since they discourage or obstruct innovation. In our environment, patent lapse means that new inventions can be built upon previously patented ideas rather than having to continually "reinvent" (or "work around") the problem.
As previously stated, trademarks have an enduring nature and can be continuously renewed, making their permanence less problematic. However, trademark trolls—who register trademarks for the same frivolous or predatory motives as patent trolls—would gain the same confidence as their counterparts. If copyrights were permanent, after the IP rights had expired, plays, music, and movies would never enter the public domain.
Consider all the works of classic literature and art that are in the public domain, such as those by Premchand, Shakespeare, and Leo Tolstoy. Today, anyone may stage a distinctively contemporary production of "Macbeth," compose a fresh translation of "Crime and Punishment," or perform Premchand's "Gaban" in an exhilarating, unheard-of manner. Then, these fresh authors may copyright their adaptations of the work. Even while there are good reasons for extending copyright periods, such as preventing the quality of the original work from being diminished, doing away with the public domain will probably deprive us of intriguing art that allows us to enjoy classic works in novel ways.
If IP rights were never to expire, the world would change in ways that is difficult to fully foresee, but they would have a big impact on enterprises, inventors, and society as a whole. It is debatable whether all of those changes would be entirely positive or harmful, but one thing is for certain: the world would be very different indeed. One in which the innovator's life would likely be harder, not easier.