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Intellectual Property: The Law and Economics Approach

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  • Richard A. Posner

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.

Suggested Citation

  • Richard A. Posner, 2005. "Intellectual Property: The Law and Economics Approach," Journal of Economic Perspectives, American Economic Association, vol. 19(2), pages 57-73, Spring.
  • Handle: RePEc:aea:jecper:v:19:y:2005:i:2:p:57-73
    Note: DOI: 10.1257/0895330054048704
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    File URL: http://www.aeaweb.org/articles.php?doi=10.1257/0895330054048704
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    References listed on IDEAS

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    1. 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.
    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 525-547, October.
    3. Universities-National Bureau Committee for Economic Research & Committee on Economic Growth of the Social Science Research Council, 1962. "The Rate and Direction of Inventive Activity: Economic and Social Factors," NBER Books, National Bureau of Economic Research, Inc, number univ62-1, June.
    4. 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 265-290, October.
    5. 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.
    6. 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.
    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. 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.
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    Citations

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    Cited by:

    1. Emanuela Carbonara & Enrico Santarelli & Hien Thu Tran, 2016. "De jure determinants of new firm formation: how the pillars of constitutions influence entrepreneurship," Small Business Economics, Springer, vol. 47(1), pages 139-162, June.
    2. repec:kap:jincot:v:17:y:2017:i:4:d:10.1007_s10842-016-0243-y is not listed on IDEAS
    3. 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, September.
    4. Felix Oberholzer-Gee & Koleman Strumpf, 2007. "The Effect of File Sharing on Record Sales: An Empirical Analysis," Journal of Political Economy, University of Chicago Press, vol. 115, pages 1-42.
    5. repec:bla:jcmkts:v:55:y:2017:i:6:p:1306-1321 is not listed on IDEAS
    6. 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, April.
    7. Stefano Comino & Fabio Maria Manenti, 2015. "Intellectual Property and Innovation in Information and Communication Technology (ICT)," JRC Working Papers JRC97541, Joint Research Centre (Seville site).
    8. 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;Deutsche Gesellschaft für Gesundheitsökonomie (DGGÖ), vol. 14(4), pages 667-675, August.
    9. 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.
    10. repec:kap:ejlwec:v:43:y:2017:i:3:d:10.1007_s10657-016-9538-z is not listed on IDEAS
    11. 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 Pós-Graduação em Economia [Brazilian Association of Graduate Programs in Economics].
    12. repec:eee:jocaae:v:12:y:2016:i:1:p:15-34 is not listed on IDEAS
    13. 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.
    14. 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.

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