The Economic Structure of Intellectual Property Law

Front Cover
Harvard University Press, Jun 30, 2009 - Law - 448 pages

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.

Table of Contents:

1. The Economic Theory of Property
2. How to Think about Copyright
3. A Formal Model of Copyright
4. Basic Copyright Doctrines
5. Copyright in Unpublished Works
6. Fair Use, Parody, and Burlesque
7. The Economics of Trademark Law
8. The Optimal Duration of Copyrights and Trademarks
9. The Legal Protection of Postmodern Art
10. Moral Rights and the Visual Artists Rights Act
11. The Economics of Patent Law
12. The Patent Court: A Statistical Evaluation
13. The Economics of Trade Secrecy Law
14. Antitrust and Intellectual Property
15. The Political Economy of Intellectual Property Law


Reviews of this book:
Chicago law professor William Landes and his polymath colleague Richard Posner have produced a fascinating new book...[The Economic Structure of Intellectual Property Law] is a broad-ranging analysis of how intellectual property should and does work...Shakespeare's copying from Plutarch, Microsoft's incentives to hide the source code for Windows, and Andy Warhol's right to copyright a Brillo pad box as art are all analyzed, as is the question of the status of the all-bran cereal called 'All-Bran.'
--Nicholas Thompson, New York Sun

Reviews of this book:
Landes and Posner, each widely respected in the intersection of law and economics, investigate the right mix of protection and use of intellectual property (IP)...This volume provides a broad and coherent approach to the economics and law of IP. The economics is important, understandable, and valuable.
--R. A. Miller, Choice

Intellectual property is the most important public policy issue that most policymakers don't yet get. It is America's most important export, and affects an increasingly wide range of social and economic life. In this extraordinary work, two of America's leading scholars in the law and economics movement test the pretensions of intellectual property law against the rationality of economics. Their conclusions will surprise advocates from both sides of this increasingly contentious debate. Their analysis will help move the debate beyond the simplistic ideas that now tend to dominate.
--Lawrence Lessig, Stanford Law School, author of The Future of Ideas: The Fate of the Commons in a Connected World

An image from modern mythology depicts the day that Einstein, pondering a blackboard covered with sophisticated calculations, came to the life-defining discovery: Time = $$. Landes and Posner, in the role of that mythological Einstein, reveal at every turn how perceptions of economic efficiency pervade legal doctrine. This is a fascinating and resourceful book. Every page reveals fresh, provocative, and surprising insights into the forces that shape law.
--Pierre N. Leval, Judge, U.S. Court of Appeals, Second Circuit

The most important book ever written on intellectual property.
--William Patry, former copyright counsel to the U.S. House of Representatives, Judiciary Committee

Given the immense and growing importance of intellectual property to modern economies, this book should be welcomed, even devoured, by readers who want to understand how the legal system affects the development, protection, use, and profitability of this peculiar form of property. The book is the first to view the whole landscape of the law of intellectual property from a functionalist (economic) perspective. Its examination of the principles and doctrines of patent law, copyright law, trade secret law, and trademark law is unique in scope, highly accessible, and altogether greatly rewarding.
--Steven Shavell, Harvard Law School, author of Foundations of Economic Analysis of Law


1 The Economic Theory of Property
2 How to Think about Copyright
3 A Formal Model of Copyright
4 Basic Copyright Doctrines
5 Copyright in Unpublished Works
6 Fair Use Parody and Burlesque
7 The Economics of Trademark Law
11 The Economics of Patent Law
A Statistical Evaluation
13 The Economics of Trade Secrecy Law
14 Antitrust and Intellectual Property
15 The Political Economy of Intellectual Property Law
Case Index

8 The Optimal Duration of Copyrights and Trademarks
9 The Legal Protection of Postmodern Art
10 Moral Rights and the Visual Artists Rights Act

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