IDEAS home Printed from https://ideas.repec.org/a/bpj/rlecon/v7y2011i2n5.html

The Law and Economics Analysis of Intellectual Property: Paradigmatic Shift From Incentives to Traditional Property

Author

Listed:
  • Salzberger Eli M.

    (The Faculty of Law, University of Haifa)

Abstract

This paper focuses on the normative analysis of intellectual property rights, in light of the technological revolution of the Internet and accompanying technologies. After a brief overview of the various philosophical justifications for awarding intellectual property rights, it identifies two major Law and Economics paradigms for the analysis of intellectual property: the incentives paradigm, which is founded upon the public goods analysis of neo-classical microeconomic theory, and the tragedy of the commons literature, which is based on the economic analysis of externalities. The paper raises several points of critique towards both frameworks of analysis and especially towards their inability to point to the desirable extent of intellectual property rights (IPR) and the direction of their reform required as the result of the recent technological revolution. It further criticizes the dominant contemporary Law and Economics writings in this field as shifting to a new proprietary paradigm that pre-assumes information to be an object of property, overlooking its fundamental differences from physical property and focusing on its management rather than on its initial justifications. The paper is concluded with some tentative thoughts on the general notion of “Property Rights” in light of the contemporary approach concerning intellectual property.

Suggested Citation

  • Salzberger Eli M., 2011. "The Law and Economics Analysis of Intellectual Property: Paradigmatic Shift From Incentives to Traditional Property," Review of Law & Economics, De Gruyter, vol. 7(2), pages 435-480, December.
    • Handle: RePEc:bpj:rlecon:v:7:y:2011:i:2:n:5
    DOI: 10.2202/1555-5879.1545
    as

    Download full text from publisher

    File URL: https://doi.org/10.2202/1555-5879.1545
    Download Restriction: For access to full text, subscription to the journal or payment for the individual article is required.
    File URL: https://libkey.io/10.2202/1555-5879.1545?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to

    for a different version of it.

    References listed on IDEAS

    as
    1. H. Scott Gordon, 1954. "The Economic Theory of a Common-Property Resource: The Fishery," Journal of Political Economy, University of Chicago Press, vol. 62(2), pages 124-124.
    2. Hall, Bronwyn H & Ziedonis, Rosemarie Ham, 2001. "The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979-1995," RAND Journal of Economics, The RAND Corporation, vol. 32(1), pages 101-128, Spring.
    3. Frischmann Brett M., 2007. "Evaluating the Demsetzian Trend in Copyright Law," Review of Law & Economics, De Gruyter, vol. 3(3), pages 649-677, December.
    4. Zoltan J. Acs & David B. Audretsch, 2008. "Innovation in Large and Small Firms: An Empirical Analysis," Chapters, in: Entrepreneurship, Growth and Public Policy, chapter 1, pages 3-15, Edward Elgar Publishing.
    5. Mark Schankerman, 1998. "How Valuable is Patent Protection? Estimates by Technology Field," RAND Journal of Economics, The RAND Corporation, vol. 29(1), pages 77-107, Spring.
    6. Mark A. Lemley & Carl Shapiro, 2005. "Probabilistic Patents," Journal of Economic Perspectives, American Economic Association, vol. 19(2), pages 75-98, Spring.
    7. Joachim Wagner, 2006. "Are nascent entrepreneurs 'Jacks-of-all-trades'? A test of Lazear's theory of entrepreneurship with German data," Applied Economics, Taylor & Francis Journals, vol. 38(20), pages 2415-2419.
    8. Wesley M. Cohen & Richard R. Nelson & John P. Walsh, 2000. "Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not)," NBER Working Papers 7552, National Bureau of Economic Research, Inc.
    9. Benkler, Yochai, 2002. "Intellectual property and the organization of information production," International Review of Law and Economics, Elsevier, vol. 22(1), pages 81-107, July.
    10. Boldrin,Michele & Levine,David K., 2010. "Against Intellectual Monopoly," Cambridge Books, Cambridge University Press, number 9780521127264, January.
    11. H. Scott Gordon, 1954. "The Economic Theory of a Common-Property Resource: The Fishery," Palgrave Macmillan Books, in: Chennat Gopalakrishnan (ed.), Classic Papers in Natural Resource Economics, chapter 9, pages 178-203, Palgrave Macmillan.
    12. Richard C. Levin & Alvin K. Klevorick & Richard R. Nelson & Sidney G. Winter, 1987. "Appropriating the Returns from Industrial Research and Development," Brookings Papers on Economic Activity, Economic Studies Program, The Brookings Institution, vol. 18(3, Specia), pages 783-832.
    13. Menell, Peter S. & Scotchmer, Suzanne, 2007. "Intellectual Property Law," Handbook of Law and Economics, in: A. Mitchell Polinsky & Steven Shavell (ed.), Handbook of Law and Economics, edition 1, volume 2, chapter 19, pages 1473-1570, Elsevier.
    Full references (including those not matched with items on IDEAS)

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Talya Ponchek, 2016. "To Collaborate or Not to Collaborate? A Study of the Value of Innovation from a Sectoral Perspective," Journal of the Knowledge Economy, Springer;Portland International Center for Management of Engineering and Technology (PICMET), vol. 7(1), pages 43-79, March.

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Salzberger, Eli, 2011. "The dominant Law and Economics paradigm regarding “Intellectual Property" – a vehicle or an obstacle for innovation, growth and progress?," Ratio Working Papers 177, The Ratio Institute.
    2. Gaétan de Rassenfosse & Ling Zhou, 2025. "Patents and Supra-competitive Prices: Evidence from Consumer Products," Working Papers 29, Chair of Science, Technology, and Innovation Policy.
    3. Cohen, Wesley M., 2010. "Fifty Years of Empirical Studies of Innovative Activity and Performance," Handbook of the Economics of Innovation, in: Bronwyn H. Hall & Nathan Rosenberg (ed.), Handbook of the Economics of Innovation, edition 1, volume 1, chapter 0, pages 129-213, Elsevier.
    4. Fontana, Roberto & Nuvolari, Alessandro & Shimizu, Hiroshi & Vezzulli, Andrea, 2013. "Reassessing patent propensity: Evidence from a dataset of R&D awards, 1977–2004," Research Policy, Elsevier, vol. 42(10), pages 1780-1792.
    5. Chung, Jiyoon & Lorenz, Annika & Somaya, Deepak, 2019. "Dealing with intellectual property (IP) landmines: Defensive measures to address the problem of IP access," Research Policy, Elsevier, vol. 48(9), pages 1-1.
    6. Malte Mosel, 2011. "Big patents, small secrets: how firms protect inventions when R&D outcome is heterogeneous," Working Papers 105, Bavarian Graduate Program in Economics (BGPE).
    7. Rockett, Katharine, 2010. "Property Rights and Invention," Handbook of the Economics of Innovation, in: Bronwyn H. Hall & Nathan Rosenberg (ed.), Handbook of the Economics of Innovation, edition 1, volume 1, chapter 0, pages 315-380, Elsevier.
    8. Cesare Righi & Timothy Simcoe, 2022. "Patenting inventions or inventing patents? Continuation practice at the USPTO," Economics Working Papers 1820, Department of Economics and Business, Universitat Pompeu Fabra.
    9. Philipp N. Baecker, 2007. "Real Options and Intellectual Property," Lecture Notes in Economics and Mathematical Systems, Springer, number 978-3-540-48264-2, March.
    10. Righi, Cesare & Cannito, Davide & Vladasel, Theodor, 2023. "Continuing patent applications at the USPTO," Research Policy, Elsevier, vol. 52(4).
    11. Timothy Simcoe & Cesare Righi, 2022. "Patenting Inventions or Inventing Patents? Continuation Practice at the USPTO," Working Papers 1320, Barcelona School of Economics.
    12. Engel, Christoph & Kleine, Marco, 2015. "Who is afraid of pirates? An experiment on the deterrence of innovation by imitation," Research Policy, Elsevier, vol. 44(1), pages 20-33.
    13. Philippe Aghion & Peter Howitt & Susanne Prantl, 2015. "Patent rights, product market reforms, and innovation," Journal of Economic Growth, Springer, vol. 20(3), pages 223-262, September.
    14. Kenneth G Huang & Jiatao Li, 2019. "Adopting knowledge from reverse innovations? Transnational patents and signaling from an emerging economy," Journal of International Business Studies, Palgrave Macmillan;Academy of International Business, vol. 50(7), pages 1078-1102, September.
    15. Joan Farre‐Mensa & Deepak Hegde & Alexander Ljungqvist, 2020. "What Is a Patent Worth? Evidence from the U.S. Patent “Lottery”," Journal of Finance, American Finance Association, vol. 75(2), pages 639-682, April.
    16. Exadaktylos, Dimitrios & Ghodsi, Mahdi & Rungi, Armando, 2024. "What do firms gain from patenting? The case of the global ICT industry," Technological Forecasting and Social Change, Elsevier, vol. 208(C).
    17. Lee, Jong-Seon & Kim, Nami & Bae, Zong-Tae, 2019. "The effects of patent litigation involving NPEs on firms’ patent strategies," Technological Forecasting and Social Change, Elsevier, vol. 149(C).
    18. Arora, Ashish & Ceccagnoli, Marco & Cohen, Wesley M., 2008. "R&D and the patent premium," International Journal of Industrial Organization, Elsevier, vol. 26(5), pages 1153-1179, September.
    19. Zhang, Gupeng & Xiong, Libin & Duan, Hongbo & Huang, Dujuan, 2020. "Obtaining certainty vs. creating uncertainty: Does firms’ patent filing strategy work as expected?," Technological Forecasting and Social Change, Elsevier, vol. 160(C).
    20. Barirani, Ahmad & Beaudry, Catherine & Agard, Bruno, 2017. "Can universities profit from general purpose inventions? The case of Canadian nanotechnology patents," Technological Forecasting and Social Change, Elsevier, vol. 120(C), pages 271-283.

    More about this item

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:bpj:rlecon:v:7:y:2011:i:2:n:5. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Peter Golla (email available below). General contact details of provider: https://www.degruyterbrill.com .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.