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The Structure of Intellectual Property Law

The Structure of Intellectual Property Law

Can One Size Fit All?

ATRIP Intellectual Property series

Edited by Annette Kur and Vytautas Mizaras

This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.

Chapter 2: A Framework for Tailoring Intellectual Property Rights

Michael W. Carroll

Subjects: law - academic, intellectual property law


Michael W. Carroll* INTRODUCTION 1. The literature concerning intellectual property rights has grown considerably in the past few decades, reflecting the growing importance of patents and copyrights as components of national and international trade regulation as well as domestic innovation and cultural policy. Nonetheless, two large questions require further attention. First, when and why grant intellectual property rights? From the economic perspective, granting exclusive rights is only one of a number of options available to stimulate investments in innovation and cultural production. There is no generally accepted framework for assessing the trade-offs between granting intellectual property rights, investing public funds directly in innovation through grants or prizes or indirectly through tax policy, or some combination of these to encourage desired levels of inventive and creative activity.1 Second, why grant patents and copyrights as usually one-size-fits-all bundles of rights? Theoretically, it would be better to tailor intellectual property rights to reduce the social costs imposed by one-size-fits-all patents and copyrights – uniformity cost. This is not to say that tailoring intellectual property rights well is easily done. On the contrary, the practical obstacles are substantial, and it is for this reason that the conceptual frames of unitary patent and copyright systems dominate the literature. But intellectual property rights have been tailored before, and they will be tailored again. It is time to have a framework for analyzing this activity * Director, Program on Information Justice and Intellectual Property, American University, Washington College of Law. 1 Stiglitz, J. (2008), ‘The Economic Foundations of Intellectual...

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