This chapter explores how aspects of property jurisprudence apply to fields of law that have come to be known as ‘intellectual property’ or ‘IP.’ It aims to illustrate both the relevance of enduring property themes to these areas of law and the ways in which intangible things resist easy analogies to tangible property. The chapter first tackles the question whether IP should be considered property at all, in light of differences between tangible resources and intellectual works. Finding the property frame a useful one despite these differences, the chapter proceeds by exploring three themes important to the analysis of tangible property that can usefully be brought to bear on IP: the role of possession in establishing and signaling property rights, the problem of information costs related to property rights, and the relationship between property rights and time.
Intellectual property enforcement has become a matter of great controversy over the past few decades. Concerns with the private and social costs of enforcing intellectual property rights have instigated intense discussions and a substantial body of literature. This chapter describes the various negative, positive, and distributive effects of costly IP enforcement. It discusses the optimal scope of IP rights in light of enforcement costs and reviews several area-specific enforcement issues in copyright, trademark, and patent law.
Christopher Buccafusco and Jonathan S. Masur
The US Constitution grants Congress the power ‘to Promote the Progress of Science and the Useful Arts’ by granting copyrights and patents to authors and inventors. Most courts and scholars understand this language to entail a utilitarian or consequentialist approach to intellectual property (IP) law. Yet while there is considerable consensus regarding US IP law’s philosophical orientation, there has been little discussion of its deeper normative goals. Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. One possibility is that IP law should encourage developments in knowledge and technology irrespective of broader interests. Another option would be to interpret the constitutional language broadly to encompass a general social welfare calculus. In this chapter we discuss a variety of ways of understanding the normative goals of a consequentialist IP regime. We argue that the best approach derives from recent work in the field of hedonic psychology. The principal consequentialist goal of IP law should be to maximize social welfare, where welfare is understood as subjective well-being.
Michael J. Madison, Katherine J. Strandburg and Brett M. Frischmann
This chapter describes a systematic approach to studying knowledge commons as an institutional mode of governance of knowledge and information resources. “Knowledge commons” refers to an institution (commons) for governing production, use, and/or preservation of a particular resource (knowledge or information, including resources linked to innovative and creative practice). “Commons” refers to a form of community management or governance. It applies to a resource, and it involves a group or community of people who share access to and/or use of the resource. “Commons” is the institutional arrangement of these elements and their coordination via combinations of law and other formal rules; social norms, customs, and informal discipline; and technological and other material constraints. “Knowledge” has broad scope, in order to permit knowledge commons researchers to capture and study a wide range of commons institutions and to highlight the importance of examining knowledge commons governance as part of dynamic, ecological contexts.
This chapter discusses the multiple empirical methods that have been and should continue to be used to study music copyright. It begins by explaining why music copyright stands out as a unique field within copyright law and the degree to which music copyright represents a tailored legal regime. It then explains the motivation for employing research methods beyond quantitative studies of observational data, focusing on the scarcity of data. The heart of the chapter surveys a range of sources, from popular-press books about the music industry and music-industry histories to interview and survey-based academic studies. Finally, looking forward, the chapter advocates a multifaceted methodological approach to the many questions that remain open regarding music copyright as a result of technological change, business innovation, and legal reforms.
Michael J. Burstein
Collaboration and sharing are critical to modern innovation environments, yet the conventional model of intellectual property is premised on the sole inventor. This chapter surveys the various institutional arrangements that challenge that premise—ex ante licensing, open innovation, user innovation, peer production, and knowledge commons. It argues that in innovation environments marked by collaboration, the common economic challenge is not sustaining incentives to innovate, as in the classic model, but overcoming barriers to information exchange. Intellectual property can, in some circumstances, facilitate the diffusion of information. But the role that IP plays in collaborative environments is complex and context-specific, as the existing empirical studies of open innovation and its variants have revealed. This suggests that intellectual property policy ought to be pluralistic, allowing for the development of a variety of institutional solutions to the challenges of collaboration.
Adam B. Jaffe and Gaétan de Rassenfosse
The last two decades have witnessed a dramatic increase in the use of patent citation data in social science research. Facilitated by the digitization of patent data and increasing computing power, a community of practice has developed that has identified methods for using these data to measure attributes of innovations such as impact and originality; trace flows of knowledge across individuals, institutions and regions; and map innovation networks. The objectives of this chapter are threefold. First, it takes stock of these main uses. Second, it discusses four pitfalls associated with patent citation data, relating to office, time and technology, examiner, and strategic effects. Third, it highlights gaps in our understanding and offers directions for future research.
Brian J. Love
The duration of a given patent’s life is a factor of two variables: first, the maximum term of protection afforded by law, and second, its owner’s willingness and ability to comply with periodic renewal obligations. This chapter reviews the theoretical and empirical literature related to both.
Arti K. Rai
This chapter covers research on interactions between institutional actors responsible for the development and implementation of US patent law. Over the last decade, arguments in favor of greater devolution of decisional authority from the Court of Appeals for the Federal Circuit to the US Patent and Trademark Office (USPTO) and the district courts have achieved some traction. However, this devolution has not necessarily been accompanied by fortification of the expertise and resources for conducting the complex fact-finding often involved in patent cases. Moreover, where devolution has been accompanied by fortification, such as through the creation of the USPTO Patent Trial and Appeals Board (PTAB), the results have been controversial. Meanwhile, many questions persist regarding whether current interactions between patent institutions are creating either appropriate results in individual cases or appropriate policy for the system as a whole. Perhaps as a consequence, the Supreme Court continues its active supervision of institutional interactions.
Rosemarie H. Ziedonis and Alberto Galasso
The past 50 years have witnessed remarkable improvements in the speed, size, and power of semiconductor devices, providing a vital underpinning for the modern information economy. This chapter describes empirical findings from studies that examine the relationship between patent rights and innovative activity in the U.S. semiconductor industry. Key questions include: how important are patent rights as a stimulus to innovation investment in this sector? What strategies do firms use to navigate the patent landscape and access technologies? To what extent, if at all, do patent rights deter follow-on innovations? The evidence suggests that, even within a single industry, patent rights play multi-faceted roles that alter the innovative activities of firms.