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PDF The Economic Structure of Intellectual Property Law

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It extended already this enormous copyright term of life plus fifty years -- extended to life plus seventy years. And also, added, I think, twenty, maybe twenty five years to the work for hire term, which is also very long. And, in part it was a kind of sentimental tribute to Sony Bono, who had died, what, in a skiing accident. Premature death, greatly lamented. And his widow said that Sony Bono had said that copyrights should be forever. So, how could you fail unanimously to extend the term a measly twenty years.

I know, forever could be a billion years. So, and then there is the Digital Millennium Copyright Act , a number of other statutes.

And yet, and this complicates the analysis, it is not the case that the Congress' interventions, which have really been very frequent in intellectual property law, in this 25 year period have all been in the direction of expanding property rights. That is the general movement, the general direction.

But, it is not uniform. For example, the Second Circuit had unfortunate decisions, particularly in the J. Salinger letter case, where a biographer of J. Salinger had quoted from some letters that Salinger had written. He had not stolen the letters or anything. You get a letter from a famous person. Maybe you deposit it in a library, and then the biographer goes to the library, reads, copies some of the letters. And the Second Circuit held that this could not, even though, it wasn't, not that the biographer was publishing the letters.

He was including excerpts from the letters to give his biography more, you know, verisimilitude, and authority, and so on. And the Second Circuit essentially said that you can't have a fair use defense for unpublished materials. The common law copyright, as it used to be called, was sacrosanct, you couldn't even take a word an unpublished article.

Then Congress essentially reversed that by providing that the same standard should govern, it is not entirely clear, the statutory language, but the implication is the same standard should govern in published and unpublished works. In the Congress restored to the Lanham Act a requirement to get a trademark you have to have commercially meaningful sales of the product, the copyright, the trademark is attached to. You can't just have a token sale. The problem with the token sales, a problem of banking trademarks.

You just trademark everything in sight, and then force people to license it from you. That is an example of wasteful rent seeking activity. And that went completely, became completely out of hand with the advent of the web. And the cyber squatters as they were called began taking out domain names in the names of companies, and named products, and then the company or the seller of the product would have to negotiate a license from the cyber squatter. And, Congress passed an anti cyber squatting statute that discourages this practice, not completely.


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And Congress also passed a statute creating a limited antitrust immunity for patent tie ins, sort of striking a blow for economic freedom against a long series of silly Supreme Court patent tie in cases. So, these all seem, and this is all something Landes and I discuss in our book, these all seem to have been economically efficient legislative interventions into the existing body of intellectual property law.

But, nevertheless, the general trend, as I have said, has been toward expanding intellectual property rights. And so, might there be a public choice explanation for this? So, abstracting the question of whether it is form of regulation, whether it is good or bad, is there some, you know, without taking a position, on whether this is in the public interest or not, can this be explained in terms of demand and supply as regulation has been explained by public choice theorists?

One possibility is that there is inherent asymmetry between the value that the creators of intellectual property place upon having property rights, and the value that would be copiers place on freedom to copy without having to obtain a license. The, you know, if you get an exclusive right to a piece of intellectual property, whether it is an invention or a book, or a movie, or what have.

That may shower economic rents on you. But copiers can only hope to obtain a competitive return. It is a feature of intellectual property. It differs from physical property. Physical property -- if property is abandoned or forfeited in some way it is available for appropriation by someone else.

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Workshop in Law and Economics of Intellectual Property - CEIPI - University of Strasbourg

So, there is a lively interest in abandoned property, because if you perceive it to have value, you can reclaim it, make it yours, and obtain the value of it. But you can't do that with abandoned intellectual property. Once intellectual property enters the public domain, with really minute exceptions, it is there forever. Anyone can use it. But, no one can establish rights in it.

And that makes it very difficult to make a lot of money from the public domain, the sort of money that would enable the formation of a compact interest group, with a really big stake in knocking out existing copyrights or patents, and contributing to the Congressmen, and so on, and getting their, your law passed. So, it looks as though it is much easier to organize a coalition of people who want to expand property rights, than to organize a copiers' interest group. And, on that theory, one might expect continuous inexorable political pressure for expansion of intellectual property rights. But there is something tugging the other way, and further complicating the analysis.

And that is that most creators of intellectual property are actually using existing intellectual property as inputs into their works. You don't really have creation ex nihilo.

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You are building. It is a cumulative process, whether technological or artistic.

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And any law that strengthens rights to intellectual property beyond the level of, beyond some unknown level, may increase the input costs, fouling their own nest, by making it impossible for them to find public domain material on which to build their new work. So this prospect, presumably, retards efforts by producers of intellectual property to press for expanding legal protection.

I mean, even Sony Bono's widow doesn't suggest that we go back and grant copyright retroactively to Homer and Shakespeare, and all of these good people. Find their heirs. Their heirs will have the intellectual property. Since clearly that would greatly complicate efforts by modern people. You know, you want to do things like the movie Shakespeare in Love, and so on. And now they would have to negotiate with some person in England.

Or think, for example, is it true? Ask yourself this question. Would even the businesses that value patent protection really strongly, would they like the Patent and Trademark Office, would they prefer that it be lax in its review of patent applications, or strict? It is really not obvious, because if the Patent and Trademark Office is known to be lax , then courts will give less weight to the presumption of validity that an issued patent is supposed to carry.

In addition, if the PTO is very lax and issue patents at the drop of a hat, the whole of kind of technology space becomes crowded with patents. And people who have serious inventive projects may find themselves impeded by the existence of a huge number patents. They may be, you know, probably invalid, and not worth much, but nevertheless, you know, they may have some hold up value.

They extract modest fees and you would rather pay the license fees. People who own patents really do not like to litigate, because their is always a potential that the patent will be declared invalid. Even in the era of the Court of, the Court of Appeals for the Federal Circuit, a quite significant fraction of the -- still, still, I think, it is actually somewhat more than half of patents challenged in litigation are held invalid.

Now, that's, there is a selection going on there. Most patents are not involved in litigation at all. But it is a curiosity that should you sue someone for patent infringement, you are in danger of not only losing you suit, but losing your patent, and that must discourage people, and make them pay off sort of nuisance patentees with license fees.

But still, as I say, despite all of these eddies and countercurrents, I think there is a persisting asymmetry in, because intellectual property rights generate rents for the owners, and the public domain does not generate rents for anyone. And we see that in the absence of any serious opposition to the Sony Bono Act. And in a difficulty that my former law clerk, and the great cyber space guru, Larry Lessig, encountered in finding a plaintiff to challenge the Constitutionality of the Sony Bono Act. If there were a big public domain lobby, public domain coalition, you would think that it would be easy for him to find a plaintiff.

But, he looked around. This is based upon an article about Lessig in Wired magazine. He did a lot of looking, and kind of -- there are plenty of eccentrics who were willing to step forward. You know, there is this whole movement, people who were the free mickey mouse t-shirts and so on. But he wanted someone who seemed commercially substantial. Someone who had a real interest in maximizing the public domain. I guess, he found Eldred.


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I do not know much about Eldred. But, he is not -- it is not as if he could find a big company that wanted to knock Mickey Mouse into the public domain. One implication of this is that the public domain isn't really worth that much. But I don't think that is true. I think the social value of the public domain in intellectual property is great. But the private values are limited because of this impossibility of appropriating it. There is also a mercantilist angle in this expansion of intellectual property rights.

What We’re Reading: Landes & Posner’s “Economic Structure of Intellectual Property Law”

The United States is a big net exporter of intellectual property, and of physical products, that are, you know, intellectual property intensive. And so, this was emphasized in the legislative history of the Sony Bono Act that here are these foreigners, because most foreign countries have life plus seventy years. These foreigners were getting royalties on their ancient copyrights from us, and if only we, we would only extend our copyright commensurately, we would be sucking in more foreign royalty payments.