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Intellectual Property: The Law and Economics Approach

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  • Richard A. Posner
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    Abstract

    With the rise of the law and economics movement, the focus of economic analysis of intellectual property has begun to shift to more concrete and manageable issues concerning the structure and texture of the complicated pattern of common law and statutory doctrines, legal institutions and business practices relating to intellectual property. Among the issues discussed in this paper are the length of protection for intellectual property, the rules that allow considerable copying of intellectual property without permission of the originator, the rules governing derivative works, and alternative methods of providing incentives for the creation of intellectual property. The emphasis is on copyright law, which, perhaps because of its complex legal structure and the relative neglect by economists of the arts and entertainment, has tended to be slighted in the conventional economic analysis of intellectual property, relative to patent law, where economic analysis can draw on an extensive literature concerning the economics of innovation. The article also touches on trademarks and trade secrets, and explores some parallels and contrasts between the legal treatment of physical and intellectual property.

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    File URL: http://www.aeaweb.org/articles.php?doi=10.1257/0895330054048704
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    Bibliographic Info

    Article provided by American Economic Association in its journal Journal of Economic Perspectives.

    Volume (Year): 19 (2005)
    Issue (Month): 2 (Spring)
    Pages: 57-73

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    Handle: RePEc:aea:jecper:v:19:y:2005:i:2:p:57-73

    Note: DOI: 10.1257/0895330054048704
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    1. Kitch, Edmund W, 1977. "The Nature and Function of the Patent System," Journal of Law and Economics, University of Chicago Press, vol. 20(2), pages 265-90, October.
    2. Shavell, Steven & van Ypersele, Tanguy, 2001. "Rewards versus Intellectual Property Rights," Journal of Law and Economics, University of Chicago Press, vol. 44(2), pages 525-47, October.
    3. Dennis W. Carlton & Michael Waldman, 2002. "The Strategic Use of Tying to Preserve and Create Market Power in Evolving Industries," RAND Journal of Economics, The RAND Corporation, vol. 33(2), pages 194-220, Summer.
    4. Nancy T. Gallini, 2002. "The Economics of Patents: Lessons from Recent U.S. Patent Reform," Journal of Economic Perspectives, American Economic Association, vol. 16(2), pages 131-154, Spring.
    5. Suzanne Scotchmer, 1991. "Standing on the Shoulders of Giants: Cumulative Research and the Patent Law," Journal of Economic Perspectives, American Economic Association, vol. 5(1), pages 29-41, Winter.
    6. Mazzoleni, Roberto & Nelson, Richard R., 1998. "The benefits and costs of strong patent protection: a contribution to the current debate," Research Policy, Elsevier, vol. 27(3), pages 273-284, July.
    7. Lichtman, Doug, 2003. "Copyright as a Rule of Evidence," Berkeley Olin Program in Law & Economics, Working Paper Series qt0pf2q49z, Berkeley Olin Program in Law & Economics.
    8. Harold M. Groves, Chairman, Universities-National Bureau Committee for Economic Research, 1962. "The Rate and Direction of Inventive Activity: Economic and Social Factors," NBER Books, National Bureau of Economic Research, Inc, number univ62-1, octubre-d.
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    Cited by:
    1. Juan Montoro Pons & Manuel Cuadrado García, 2008. "Legal origin and intellectual property rights: an empirical study in the prerecorded music sector," European Journal of Law and Economics, Springer, vol. 26(2), pages 153-173, October.
    2. Iain Clacher,, 2010. "National accounting for intangible assets in the knowledge economy," Journal of Financial Regulation and Compliance, Emerald Group Publishing, vol. 18(2), pages 106-119, May.
    3. Roger Feldman & Félix Lobo, 2013. "Competition in prescription drug markets: the roles of trademarks, advertising, and generic names," The European Journal of Health Economics, Springer, vol. 14(4), pages 667-675, August.
    4. Nodir Adilov & Michael Waldman, 2013. "Optimal Copyright Length And Ex Post Investment: A Mickey Mouse Approach," Economic Inquiry, Western Economic Association International, vol. 51(2), pages 1101-1122, 04.
    5. Stan J. Liebowitz & Richard Watt, 2006. "How To Best Ensure Remuneration For Creators In The Market For Music? Copyright And Its Alternatives," Journal of Economic Surveys, Wiley Blackwell, vol. 20(4), pages 513-545, 09.
    6. Peter Lewin, 2007. "Creativity or Coercion: Alternative Perspectives on Rights to Intellectual Property," Journal of Business Ethics, Springer, vol. 71(4), pages 441-455, April.
    7. Alain Herscovici, 2011. "Informação,Conhecimento E Direitos De Propriedade Intelectual: Os Limites Dosmecanismos De Mercado E Das Modalidades De Negociação Privada," Anais do XXXVIII Encontro Nacional de Economia [Proceedings of the 38th Brazilian Economics Meeting] 131, ANPEC - Associação Nacional dos Centros de Pósgraduação em Economia [Brazilian Association of Graduate Programs in Economics].

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