Explaining intellectual property: the emergence of intangible property contract regulation in the XXI century

The rise of the digital environment and the Internet during the last decades resulted in a number of novel issues in the field of intellectual property rights (IPRs) and Internet contract (IC) regulation. Many doctrinal approaches have attempted to elaborate adequate models for the management of IPRs and IC implementation. From the technical point of view, several solutions to managing IPRs and implementing IC exist. We still miss, however, a fullyfledged theoretical framework that articulates the features of the new kinds of property that arise in relation to digital goods and the role of users’ input. The lack of a legal and regulatory theory of new kinds of property is often at the origin of provisions that are not very accurate or stringent to the users who are held accountable and responsible for their actions. The aim of this dissertation is to suggest basic subject-matter design principles that should be taken into account when drafting and enacting intellectual property and contract laws: Principle 1: Provide precise, clear, and unambiguous definitions of key concepts and terms such as intangible property, intangible property rights, intangible property works and goods, IPM. This principle is needed for achieving a certain level of legal certainty and limiting the scope of the laws implementation. The analysis of existing intellectual property (IP) and IC laws in different jurisdictions across continents suggests that according to the development and creation of new forms of creativity it is possible to defining core terms of intangible property protection. Principle 2: Enforce IP legislation in the context of intangible property provisions. The review of legal regimes under various legal frameworks as well as the overview of legislation in the U.S. and in Europe suggests that intangible property provisions tend to change the allocation of rights previously embodied in the respective national IP laws. Particularly significant shifts can be observed in areas such as rights of use, access, communication and traditional user privileges such as fair use or the 'right' to make private copies. Thus, it is crucial to carefully design the framework applicable to IPM, provide appropriate mechanisms for the effective enforcement of rights, analyse the interplay of the exception regime with the other core elements of the IP framework. Principle 3: Enforce IC discretion with regard to principles of contract law and remedies and adhere to the principle of the new transaction environment. IC frameworks provide some degrees of flexibility in new method of manifesting contractual intention and analytical process of establishing the contents of a contract. Establishing the obligations of the parties should carefully consider the analytical process of defining the contents of a contract, thereby following the principle of contractual intention (PCI). Among the usual options to be considered are the analytical process of establishing the obligations of the parties, the incorporation of descriptions of the contractual subject matter and assertions as to its quality or performance and liability perspective. In addition, the interplay among the liability provisions and the other elements of the framework, including scope and exceptions, must be equilibrated. Principle 4: The monitoring and review of the effects of the IPM need to incorporate necessary procedures and tools of intangible property rights protection. It is crucial to establish mechanisms that take into account the effects of Internet innovations. Such processes and tools might include technical, legislative and procedure review and might focus, among others things, on the core zones of concern outlined in the context of this dissertation with special attention on the IPM. In sum, IP and IC law might provide a helpful structure for intangible property regulation with these principles in mind. The discussion of the various options and approaches helps to determine the necessary components and infrastructure of the IPM.