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Innovation and Competition: Conflicts over Intellectual Property Rights in New Technologies

In the last 20 years or so, the explosive growth of new technologies-many of which are radically different from prior technologies-has created something of a crisis in intellectual property law.' Earlier, new types of innovations were usually folded into or grafted onto existing copyright or patent statutes.2 If innovations fell "between the cracks" of these two systems, they were assumed to be unprotectable by the law.3 In the 1970s and 1980s, however, Congress has created new intellectual property systems for certain categories of innovations-most notably the Plant Variety Protection Act4 and the Semiconductor Chip Protection Act.5 In addition, copyright and patent law have been made to take in subject matters of such a radically different character than those for which they were designed-machine-readable software in the case of copyright6 and geneticallyengineered life forms in the case of patents7-that the coherence and integrity of those legal systems may be in jeopardy.8 The greatest challenge for intellectual property theorists in the future will be in understanding how the coherence of the existing intellectual property schemes can be maintained or a new co-