Christopher Buccafusco and Christopher Jon Sprigman
Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from existing culture and technology. Until recently, there had been little effort to validate any of these assumptions. Fortunately, the last decade has witnessed significant interest in empirically testing IP law’s foundations. This chapter discusses the use of experimental and survey methods to understand how various features of copyright and patent law affect behavior. These methods allow researchers to ask and answer questions that are not generally possible with other empirical strategies. We first discuss some of the advantages of using experimental research. Then we highlight some of the findings that this research has produced thus far. Finally, we explore a variety of methodological issues that experimental researchers face.
Kal Raustiala and Christopher Jon Sprigman
The law and economics of intellectual property (IP) has long rested on a foundational, if implicit, premise: that IP law is best understood by studying how legal rules operate in actual markets for creative work. Yet this way of thinking about IP leaves open a host of important and fascinating questions. Can innovation flourish in the absence of IP protection? Can market incentives, psychological factors, social norms, first-mover advantages, or any number of other factors, serve as whole or partial substitutes for IP rights? In this chapter, we explore IP’s ‘negative space’—that is, those creative and innovative fields that, for historical, doctrinal, or other reasons are not addressed by IP law—and the scholarship that has begun to illuminate it. This literature is barely more than a decade old, but already it has shaped how scholars today think about IP. In particular, it shows that the link between IP and creative incentives is more conditional and contested than many believe.