The Economics of Improvement in Intellectual Property Law

The Economics of Improvement in Intellectual Property Law
75 Tex. L. Rev. 989
Bluebook cite
Mark A. Lemley, The Economics Of Improvement In Intellectual Property Law, 75 Tex. L. Rev. 989 (Apr. 1997)

Mark A. Lemley
75 TXLR 989

Item Type
. . . In this Article, I argue that copyright rules regarding improvement should look more like analogous patent doctrines. I suggest that there should be a rule of "blocking copyrights" analogous to the blocking patents doctrine that already exists, and that the "transformative use" doctrine gaining currency among the courts may, if properly applied, protect radical improvers from liability to original copyright owners even where the improvement hurts the market for the original work. Part I sets out the economic background of intellectual property and the general problem of improvements. Part II examines the treatment of improvement under patent law, with particular attention paid to the doctrine of blocking patents and the reverse doctrine of equivalents. Part III examines the treatment of similar improvements under copyright law, considering both the rules governing derivative works and the fair use doctrine as it has historically been applied. In Part IV, I consider whether the different treatment of *993 improvement under the patent and copyright laws is justifiable. For a variety of reasons, I conclude that it is not. Part V then models the optimal treatment of improvement in intellectual property law, concluding that the patent rules regarding improvements make more sense than the analogous copyright rules, largely because they reflect more realistic assumptions about the economics of intellectual property licensing. Part VI offers a way to interpret the fair use doctrine in copyright to reach a result analogous to that in the patent cases, and provides examples of how certain cases might be decided under that interpretation.

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Wednesday 19 of August, 2009 18:21:10 GMT
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Wednesday 19 of August, 2009 18:21:10 GMT
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