The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property

Abstract

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Keywords: intellectual property, patents, non-competes, trade secrets, employment law, human capital, incentives, experimental studies, behavioral law and economics, antitrust, competition law, innovation policy, knowledge networks, commons, contract theory, copyright, creativity, motivation

JEL Classification: O34; O15; J41; A10; J21; J60; J61; J58; J62; J63; J68; K00; K2; K21; L51; K32; I1; I18; H3; H51; A1