Chapter 6: Does the new economy need all the old IPR institutions and still more?
* Paul A. David 6.1 INTRODUCTION My question in this chapter’s title signals the deliberately provocative line of argument developed in the following pages. To many writers in the business press, academic economists, lawyers and policy makers, the centrality of information technologies and information goods in the phenomena that are associated with the New Economy has suggested that the world has now entered the epoch of ‘Intellectual Capitalism’. Accordingly, it is claimed that the inherited regime of intellectual property rights (IPR) institutions must be protected from the disruptive eﬀects of the rapid advance of digital information technologies and computer-mediated telecommunications, further strengthened, and harmonized globally. Yet, much of the justiﬁcation for that view, and hence for the sanguine and in some quarters enthusiastic view of recent trends in the elaboration and extension of IPR protections, rests on little evidence and inadequately careful economic analysis. There are respects in which the new technological setting is increasing the seriousness of the drawbacks of using legal monopolies to solve the problems that the ‘public goods’ features of information pose for competitive markets. But the latter problems, although long familiar to economists, are beginning to look increasingly tractable without recourse to IPR protection. A case therefore can be made that the developed and developing economies have a common interest in halting, and, indeed, reversing the encroachments on the public knowledge commons that have resulted from the excessively enthusiastic application of copyright and copyright-like protections. That interest lies not only in reducing the impediment...
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