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http://ssrn.com/abstract=1398845
 
 

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The Upside of Intellectual Property's Downside


Christopher Anthony Cotropia


University of Richmond School of Law

James Gibson


University of Richmond School of Law

February 23, 2009

UCLA Law Review, Vol. 57, p. 921, 2010

Abstract:     
Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the upside of intellectual property: the production of valuable goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders can create more artificial scarcity than the incentive effect warrants. Such overprotection not only denies the public access to the innovation without a corresponding gain in incentive, but it also retards future innovation by making it more difficult for follow-on innovators to make use of existing products. This is the downside of intellectual property: reduced production and impeded innovation.

This article turns the traditional discussion on its head and shows that intellectual property's putative costs can actually be benefits. It does so by questioning one of the discussion's underlying assumptions: that innovation is always good. This assumption is usually valid, but not always; there are certain industries that society may prefer to suppress. If intellectual property reduces production and impedes innovation in those industries, then its protection would be a net gain for society. We examine a handful of such industries (tax planning, pornography, and others), demonstrate that keeping (or bringing) them under the intellectual property umbrella may be the best way to stifle them - an approach that runs contrary to the scholarly consensus - and thereby describe the circumstances under which intellectual property's downside can become society's upside.

Number of Pages in PDF File: 62

Keywords: patent, copyright, intellectual property, tax, biotechnology, fashion, pornography, monopoly, innovation

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Date posted: May 6, 2009 ; Last revised: March 28, 2013

Suggested Citation

Cotropia, Christopher Anthony and Gibson, James, The Upside of Intellectual Property's Downside (February 23, 2009). UCLA Law Review, Vol. 57, p. 921, 2010. Available at SSRN: http://ssrn.com/abstract=1398845 or http://dx.doi.org/10.2139/ssrn.1398845

Contact Information

Christopher Anthony Cotropia (Contact Author)
University of Richmond School of Law ( email )
28 Westhampton Way
Richmond, VA 23173
United States
James Gibson
University of Richmond School of Law ( email )
28 Westhampton Way
Richmond, VA 23173
United States
804-287-6398 (Phone)
804-289-8683 (Fax)
HOME PAGE: http://law.richmond.edu/people/faculty/jgibson/
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