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Some Economic Considerations in the Intellectual Property Protection of Software

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  • Dam, Kenneth W

Abstract

Intellectual property has frequently had to confront the issue of how to protect new technologies. The rise of software as a major industry is one such new challenge. An economic approach to the protection of software adds to the already extensive legal analysis. On the one hand, existing copyright and patent law provides a sound basis for an economically efficient system of protection. Copyright law deals with the appropriability problem without creating significant monopoly or rent-seeking problems. Copyright law also provides a sound basis for preserving a balance between innovation today and innovation tomorrow. These conclusions depend crucially, however, on maintaining the distinctions between attachment and replacement and between transformative and substitutive uses. Software-related patents are economically sound. However, as actually administered, the system may generate too many invalid patents. Sui generis protection is less desirable than copyright and patent protection. Copyright 1995 by the University of Chicago.

Suggested Citation

  • Dam, Kenneth W, 1995. "Some Economic Considerations in the Intellectual Property Protection of Software," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 321-377, June.
    • Handle: RePEc:ucp:jlstud:v:24:y:1995:i:2:p:321-77
    DOI: 10.1086/467962
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    Cited by:

    1. Jongwook Kim & Joseph T. Mahoney, 2002. "Resource-based and property rights perspectives on value creation: the case of oil field unitization," Managerial and Decision Economics, John Wiley & Sons, Ltd., vol. 23(4-5), pages 225-245.
    2. von Krogh, Georg & von Hippel, Eric, 2003. "Special issue on open source software development," Research Policy, Elsevier, vol. 32(7), pages 1149-1157, July.
    3. Steven G. Medema, 2020. "The Coase Theorem at Sixty," Journal of Economic Literature, American Economic Association, vol. 58(4), pages 1045-1128, December.
    4. Juranek, Steffen, 2015. "Investing in legal advice - What determines the costs of enforcing intellectual property rights?," Discussion Papers 2015/20, Norwegian School of Economics, Department of Business and Management Science.
    5. James Bessen & Robert M. Hunt, 2007. "An Empirical Look at Software Patents," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 16(1), pages 157-189, March.
    6. Depoorter, Ben & Parisi, Francesco, 2002. "Fair use and copyright protection: a price theory explanation," International Review of Law and Economics, Elsevier, vol. 21(4), pages 453-473, May.
    7. Mustonen, Mikko, 2003. "Copyleft--the economics of Linux and other open source software," Information Economics and Policy, Elsevier, vol. 15(1), pages 99-121, March.
    8. Georg von Krogh & Eric von Hippel, 2006. "The Promise of Research on Open Source Software," Management Science, INFORMS, vol. 52(7), pages 975-983, July.
    9. Amit Shovon Ray & Subhasis Bera, "undated". "To Contribute or not to Contribute: Micro-theoretical Models of the Open Source Software (OSS) Development," Centre for International Trade and Development, Jawaharlal Nehru University, New Delhi Discussion Papers 09-09, Centre for International Trade and Development, Jawaharlal Nehru University, New Delhi, India.
    10. Michael Rushton, 1997. "When in Rome ... Amending Canada's Copyright Act," Canadian Public Policy, University of Toronto Press, vol. 23(3), pages 317-330, September.
    11. Antonio Nicita & Matteo Rizzolli & Maria Alessandra Rossi, 2007. "IP Law and Antitrust Law Complementarity when Property Rights are Incomplete," Department of Economics University of Siena 509, Department of Economics, University of Siena.
    12. Eric von Hippel & Georg von Krogh, 2003. "Open Source Software and the “Private-Collective” Innovation Model: Issues for Organization Science," Organization Science, INFORMS, vol. 14(2), pages 209-223, April.
    13. Andrea Fosfuri & Marco S. Giarratana & Alessandra Luzzi, 2008. "The Penguin Has Entered the Building: The Commercialization of Open Source Software Products," Organization Science, INFORMS, vol. 19(2), pages 292-305, April.
    14. Knut Blind & Jakob Edler, 2003. "Idiosyncrasies of the Software Development Process and Their Relation to Software Patents: Theoretical Considerations and Empirical Evidence," Netnomics, Springer, vol. 5(1), pages 71-96, May.

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