Research Handbook on the Economics of Intellectual Property Law
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Research Handbook on the Economics of Intellectual Property Law

Vol 1: Theory Vol 2: Analytical Methods

Edited by Ben Depoorter, Peter Menell and David Schwartz

Both law and economics and intellectual property law have expanded dramatically in tandem over recent decades. This field-defining two-volume Handbook, featuring the leading legal, empirical, and law and economics scholars studying intellectual property rights, provides wide-ranging and in-depth analysis both of the economic theory underpinning intellectual property law, and the use of analytical methods to study it.
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Chapter 3: Governing intellectual property

Henry E. Smith

Abstract

Debates over intellectual property often assume that recognition of any property element in intellectual property leads to overprotection, and that ‘governance’ is a counterpoint to the excesses of property protection. In this chapter I show that governance is itself a property device, one that not only substitutes for exclusion but often works in tandem with exclusion rights. A governance strategy allocates entitlements more directly based on use than does exclusion, and helps define modular packages of rights. For ‘fluid’ property, of which property in a nonrival resource like information is a prominent example, governance is especially important, because multiple use is crucial and it is difficult to separate out ‘things’ for property protection. The role of governance in intellectual property helps explain the difference between patent and copyright, the strengths and weaknesses of licensing, the role of equity, and the importance of group institutions.

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