The Economic Structure of Intellectual Property Law
William M. Landes
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This book takes a fresh look at the most dynamic area of American law today, comprising the fields of copyright, patent, trademark, trade secrecy, publicity rights, and misappropriation. Topics range from copyright in private letters to defensive patenting of business methods, from moral rights in the visual arts to the banking of trademarks, from the impact of the court of patent appeals to the management of Mickey Mouse. The history and political science of intellectual property law, the challenge of digitization, the many statutes and judge-made doctrines, and the interplay with antitrust principles are all examined. The treatment is both positive (oriented toward understanding the law as it is) and normative (oriented to the reform of the law).
Previous analyses have tended to overlook the paradox that expanding intellectual property rights can effectively reduce the amount of new intellectual property by raising the creators' input costs. Those analyses have also failed to integrate the fields of intellectual property law. They have failed as well to integrate intellectual property law with the law of physical property, overlooking the many economic and legal-doctrinal parallels.
This book demonstrates the fundamental economic rationality of intellectual property law, but is sympathetic to critics who believe that in recent decades Congress and the courts have gone too far in the creation and protection of intellectual property rights.
source. Information about source economizes on search costs by lowering the cost of selecting goods on the basis of past experience or the recommendation of other consumers. The second kind of information is information about the product itself. For example, a “descriptive” mark (of which more later) may, in addition to identifying source, describe some properties of the brand; this information also lowers search costs. 15. This is probably a factor in the drug example in note 13 above. 16. Our
described in his patent. These equivalents are like derivative works, that is, “copies” because they are substantially similar though not identical to the original. But if the second invention, though it overlaps the first, is so much more inventive as to make the first invention really just an immaterial variation of it, the reverse doctrine of equivalents clicks in and the second inventor does not need a license from the first. And likewise Leonardo da Vinci’s painting The Last Supper, though
that discreditable jottings were not protected by copyright would induce people to be more discreet in those jottings. Since the private cost of discretion is likely to be less than its social cost in concealing valuable clues to character, the reticence factor will reduce the consumer surplus generated by biographies if unpublished materials are denied copyright protection. Productive versus Reproductive Uses We have thus far been considering only productive uses of unpublished materials not
original work control over the derivatives as well are equally available in defense of the law’s differentiating between parodies and burlesques and withholding the fair use defense from the latter. One of the authors of this book was as a college student involved in the composition and performance of a college musical entitled My Ugly Broad, a burlesque of My Fair Lady that though it never became the subject of litigation illustrates the concerns of this chapter in an interesting way. The Lerner
359 (4th Cir. 2001), and Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769 (8th Cir. 1994), the parodist fails to make clear that he is not the author or affiliated with the author of the original work. 44. The weapon and target cases sum to 82 because there are 5 dual cases. 7 The Economics of Trademark Law Trademarks are a distinct form of intellectual property from patents and copyrights. In some respects trademark law is closer to tort law (indeed, from a technical legal