The fundamental right to property and the protection of investment: how difficult is it to repeal new intellectual property rights?

At present, there is a proliferation of policy debates concerning proposals for new intellectual property (IP) rights. High-profile examples include publishers’ rights, data producers’ rights, and sport events organizers’ rights. These rights are presented as tools of the European Union’s (EU) innovation policy. However, how sticky are these tools? Much of the existing literature focuses on the first-order issue of their social costs and benefits. Little attention is paid to the problem of institutional inertia which keeps some of these solutions in circulation despite their proven ineffectiveness. While economic progress is unthinkable without stable property rights, it is equally unthinkable without their never-ending adjustment and continuous reflection of their effects. This chapter examines the question as to how difficult it would be to legislate away a new set of intellectual property rights once they are found to be incapable of delivering on their promises.