The Neuropolitics of Brain Science and Its Implications for Human Enhancement and Intellectual Property Law

As we learn more about how the brain functions, the study of the brain changes what we know about human creativity and innovation and our ability to enhance the brain with technology. The possibilities of direct brain-to-brain communication, the use of cognitive enhancing drugs to enhance human intelligence and creativity, and the extended connections between brains and the larger technological world, all suggest areas of linkage between intellectual property (IP) law and policy and the study of the brain science. Questions of importance include: Who owns creativity in such a world when humans are enhanced with technology? And how does one define an original work of authorship or invention if either were created with the aid of an enhancement technology? This paper suggests that new conceptualizations of the brain undermine the notion of the autonomous individual and may serve to locate creativity and originality beyond that of individual creation. In this scenario, the legal fiction of individual ownership of a creative work will be displaced, and as this paper warns, under current conditions the IP policies which may take its place will be of concern absent a rethinking of human agency in the neuropolitical age.