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 14: Tailoring intellectual property rights to reduce uniformity cost

Michael W. Carroll

Abstract

By design, copyright and patent law provide largely one-size-fits-all exclusive rights to inventors and authors. This policy creates the problem of uniformity cost, defined as the social cost attributable to the misalignment between the general level of exclusion provided by uniform rights and the specific level of exclusion that would be optimal with respect to any given author or inventor to both create and to commercialize their work. This chapter provides an explanation for the uniformity policy and the existing means of reducing uniformity cost through real options, flexible standards, and private ordering. It then discusses the conditions that would make tailoring intellectual property rights superior to uniform rights. It identifies the categories of economic evidence that would support specific tailoring interventions, which can be done through legislation, judicial interpretation, or administrative rules depending upon context.

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