Custom, including industry practices and social norms, has a tremendous influence on intellectual property (‘IP’) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyse infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to considering how custom affects IP entitlements both outside and inside the courtroom. This book chapter in the Research Handbook on the Economics of Intellectual Property Law focuses on the theoretical frames that inform the incorporation of custom into the law, and documents some of the practices and norms of various communities that use IP. I criticize the frequent and unreflected reliance on custom to determine the scope of IP rights, suggesting guidelines for when it can nevertheless be a sometimes useful tool for providing insights about IP laws. This analysis is partially informed by traditional common law limits on the incorporation of custom into the law. The chapter concludes with some recommendations for future areas of research for scholars based on my framework for thinking about custom in the context of IP laws.
This chapter explores how infrastructure theory applies to cultural-intellectual resources. It begins with a summary of infrastructure theory and then discusses how the theory applies to intellectual-cultural resources. Applying the theory reveals a series of demand-side complications for conventional law and economic theories of intellectual property and related governance institutions. These complications arise vividly in modern debates about intellectual property rules that exclude certain subject matter or otherwise limit the scope of intellectual property rights and sustain commons (public access). The entry is an adaptation of ‘Intellectual Infrastructure,’ chapter 12 of Frischmann (2012).
Sean A. Pager
Does copyright foster the development of creative industries in developing countries? To answer, this chapter explores case studies from Nigeria, India, and China. It argues that copyright’s decentralized, market-driven incentives and allocative efficiencies offer distinct advantages over alternative models such as state patronage and commons-based development. The chapter emphasizes that copyright need not be embraced as an all-or-nothing proposition. Copyright norms can govern some aspects of creative industry operations, while remaining absent in other domains. Thus, high levels of piracy in developing countries are not necessarily incompatible with copyright. As industries develop, however, copyright’s benefits become more salient, and the logic of formalization exerts a gravitational pull. The chapter also examines the interplay between copyright and cultural diversity. It argues that the causal relationships here are complex and ambiguous. It is far from clear, however, that copyright markets are intrinsically hostile to diversity, and copyright’s absence poses its own set of concerns.
Intellectual property, among other legal instruments, is used to promote economic development. This chapter explores the normative dimensions of economic development such as growth in gross national product, technological change, and social indicators like health, literacy, and well-being. After an analysis of normative issues, the chapter moves to positive analyses on the relationship between the exclusive rights of intellectual property and development. In conclusion, the author explores topics for future research and policy prescription.
Keith E. Maskus
This chapter reviews evidence regarding several of the most important relationships between intellectual property rights (IPRs) and economic development. Theoretical analysis generally yields ambiguous predictions, while empirical analysis suffers from the lack of data on key questions. Nonetheless, several interesting findings are discussed. First recent research suggests that patent reforms can expand innovation in emerging countries with sound facilitating conditions. Second, patent reforms in emerging countries have attracted significantly higher inward flows of technology and encouraged the development of export sectors. However, such processes are absent in the poorest countries. Third, simulation models suggest that new patent regimes could raise pharmaceutical prices in developing countries. Recent empirical evidence, however, suggests that this effect may be offset by other factors. Moreover, stronger patent protection induces faster product launches in reforming countries. Thus, the impact of patents on access to medicines in developing economies may not be as negative as often feared.
Edited by Ben Depoorter, Peter Menell and David Schwartz
David L. Schwartz and Ted Sichelman
This chapter provides a roadmap of the principal data sources for the various forms of intellectual property protection. We first explain what data is available about patents, copyrights, trademarks, and other types of intellectual property, and where to find it. Then we identify and analyze data sources specifically relating to intellectual property licensing and litigation—growing areas of research by scholars and lawyers.
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.
John R. Allison
This chapter explores the concept of patent value, and what this commonly used but poorly understood term might mean. It critically reviews the extant theoretical and empirical literature on patent value and suggests ways in which various approaches to the topic could be improved.
Michael D. Frakes and Melissa F. Wasserman
While there is a substantial literature in law and economics bearing on the patent system, the administrative process by which patent rights are initially established has received scant attention. In the past decade, a growing but nascent literature has emerged that has begun to shed empirical light on the patent examination process. This chapter will provide a brief overview of this literature, focusing only on studies that carry significant empirical components and only on studies of the U.S. patent system. The need for sound empirical guidance on the administrative process of obtaining a patent is substantial. Without sufficient empirical evidence as to which features of the U.S. Patent and Trademark Office shape the Agency’s decision making, policymakers are left trying to reform the patent system without understanding the root cause of the system’s pathologies