Research and Analysis
Edited by Lisa N. Takeyama, Wendy J. Gordon and Ruth Towse
Chapter 9: The basics matter: at the periphery of intellectual property
F. Scott Kieﬀ and Troy A. Paredes 9.1 INTRODUCTION Controversies often arise at the interfaces where intellectual property (‘IP’) law meets other topics in law and economics, such as property law, contract law, and antitrust law.1 Participants in the debates over how to mediate these interfaces often view each interface as a special case deserving unique treatment under the law.2 The doctrines of copyright and patent misuse are cases in point: they graft select antitrust principles onto copyright or patent law, even though there is an entirely distinct body of law – antitrust law – designed to deal with the putative concerns about competition that allegedly give rise to misuse. We argue that such specialized approaches to IP are built by selectively exalting and ignoring particular aspects of the positive and normative frameworks from distinct substantive areas of law – IP law, antitrust law, property law, and contract law. Overlooking the totality of these frameworks frustrates the nuanced equilibria to which they each have evolved, as well as the full complement of important dynamic forces that aﬀects each legal framework as it continues to develop.3 Instead, we argue that the better approach focuses on the ‘basics’ – or core principles and features – of each distinct area of law.4 Our approach avoids specialized frameworks for analysing IP law and the interfaces it shares with other bodies of law. To do so, the ‘basics approach’ has both a procedural and a substantive component. On procedure, our approach emphasizes that the analysis in any particular case...
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