Paul Edward Geller, ‘Opening Dialogue on Intellectual Property’

Abstract:
This dialogue, between a philosopher and a lawyer, dramatizes the economic analysis of intellectual property critically. To start, with a stylized example of such property, it illustrates problems that the law has to address as cultural goods, such as works and inventions, tend to become public goods. It goes on to unpack variables on which the resolution of such problems turn, for example, incentives for creation, elastic demands for cultural goods, and market risks of cultural producers. Then the dialogue points out the following vicious circle in theory: economic analysis maintains that, absent rights to protect them, cultural goods, insofar as they become public goods, lack sure markets; however, until rights secure such markets, there can be no reliable market data on which to base fashioning the rights in question. A dilemma ensues in practice: when in doubt, should lawmakers lean toward overprotection, possibly obstructing spillovers of creations to feed new culture, or else toward underprotection, possibly impairing incentives to create? Finally, the dialogue questions whether economic analysis suffices to defuse such tensions, especially in historically hard cases.

Geller, Paul Edward, Opening Dialogue on Intellectual Property (December 15, 2015). Juriste Sans Frontières: Mélanges Ejan Mackaay (Essays in Honor of Ejan MacKaay), Stéphane Rousseau, ed, pp 341-382 (2015) Éditions Thémis.

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