Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from existing culture and technology. Until recently, there had been little effort to validate any of these assumptions. Fortunately, the last decade has witnessed significant interest in empirically testing IP law’s foundations. This chapter discusses the use of experimental and survey methods to understand how various features of copyright and patent law affect behavior. These methods allow researchers to ask and answer questions that are not generally possible with other empirical strategies. We first discuss some of the advantages of using experimental research. Then we highlight some of the findings that this research has produced thus far. Finally, we explore a variety of methodological issues that experimental researchers face.
Christopher Buccafusco and Jonathan S. Masur
The US Constitution grants Congress the power ‘to Promote the Progress of Science and the Useful Arts’ by granting copyrights and patents to authors and inventors. Most courts and scholars understand this language to entail a utilitarian or consequentialist approach to intellectual property (IP) law. Yet while there is considerable consensus regarding US IP law’s philosophical orientation, there has been little discussion of its deeper normative goals. Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. One possibility is that IP law should encourage developments in knowledge and technology irrespective of broader interests. Another option would be to interpret the constitutional language broadly to encompass a general social welfare calculus. In this chapter we discuss a variety of ways of understanding the normative goals of a consequentialist IP regime. We argue that the best approach derives from recent work in the field of hedonic psychology. The principal consequentialist goal of IP law should be to maximize social welfare, where welfare is understood as subjective well-being.