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Dan L. Burk

During the past several years, an increasing number of scholars in a variety of fields have begun to re-emphasise the centrality of matter in their exploration of the world. This “new materialism” seems in part a reaction to the “discursive turn” during the latter years of the twentieth century which over-emphasised the cultural and semiotic dimensions in our understanding of the universe. Drawing on multiple theorists from Deleuze to Latour, scholars in disciplines across the humanities and social sciences have begun rejecting the physical dualisms that pervade even postmodern analyses, in order to develop a coherent understanding of observed phenomena. This approach has become particularly important in the area of “digital humanities”, where the digitisation of traditional expressive forms, or the development of new digital expressive forms, fundamentally implicates the connectivity of the virtual and the material. Copyright has long rested upon a series of dualistic doctrinal structures, including the fundamental dichotomy between the immaterial “work” and its fixation in a physical “copy.” This distinction, which was never entirely coherent even in traditional media, has broken down in the face of digital instantiations of creativity. The disconnection between legal doctrine and new media has now resulted in decades of incomprehensible decisions regarding the fixation of works in computer circuitry or the transmission of works across telecommunications media, particularly the internet. New materialism might offer copyright a path out of such unsustainable distinctions, by providing a viewpoint that traverses the artificial opposition of work and copy, recognising the primacy of matter in the development of creative expression.

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Dan L. Burk and Mark A. Lemley

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Dan L Burk and Brett H McDonnell

Intellectual property frequently carries with it exclusive rights not only over the primary subject matter of the rights granted, but also over ancillary subject matter that is not within the definition of the primary grant, as for example in the patent doctrine of contributory infringement. Previous scholars have explored the potential for intellectual property rights to affect the size and structure of firms by mitigating transaction costs both between firms and within firms. Here we extend that framework to consider the impact of ancillary rights, which we expect to have their own effects on a firm's ‘make or buy’ decision. Ancillary rights may place an intellectual property holder in a position to license production of complementary products or components to other firms. In some instances the absence of ancillary rights may prompt firms to vertically integrate, in order to bring such transactions in house. We anticipate that doctrines such as contributory infringement impact employee mobility out of firms holding patents. We also anticipate that contributory infringement rights will tend to lower overall transaction costs, although this may vary with the circumstances in a particular industry.