In the search for rationales and guidance for the use of criminal law in an intellectual property (IP) law context the economic approach to law constitutes a ‘beacon of hope’ in a highly contentious law and policy area. The main purpose of this article is to discuss whether this expectation is warranted through an analysis of the answers that the economic approach to law provides and an analysis of the questions that the economic approach has failed to answer. The economic analysis of law in the framework of law and economics can now broadly be defined as ‘the application of economic theory and econometric methods to examine the formation, structure, processes and impact of law and legal institutions’. As such, the economic analysis of the law has spread into almost any area of law – such as IP law and its enforcement. The area of criminal enforcement of IP law, however, is still a closed book and has carelessly been neglected by economists. By contrast, economic theories of crime and punishment have flourished ever since Becker developed his seminal economic model of crime and punishment in 1968. Such theories have aimed at providing answers to two fundamental questions: First, what acts should be punished? Second, to what extent should such acts be punished? However, answers to these questions have primarily related to traditional crime and punishment issues – such as capital punishment – rather than counterfeiting and piracy scenarios in a digital era thereby leading to a scarcity of economic analyses in the IP law realm.
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