A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights

International Intellectual Property Scholars Series, 17 Marquette Intellectual Property L. Rev. 191 (2013).

40 Pages Posted: 31 Jan 2014

See all articles by Andreas Rahmatian

Andreas Rahmatian

University of Glasgow - School of Law

Date Written: May 30, 2013

Abstract

The economic analysis of law and legal institutions or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach regard especially intellectual property as a ‘natural field for economic analysis of law’. However, the law-and-economics analysis interprets legal rules and institutions with the methodology of economics, and so transforms them into unrecognisable artefacts. This is particularly so with regard to intellectual property law: while in the case of trademarks law-and-economics analysis is merely too simplistic and often superfluous, in the cases of patents and particularly copyright it is positively harmful to these legal institutions. Economic methodology has not been developed for the analysis of law, and the purpose of legal methodology is not the scientific exploration of economic efficiency. This article is a fundamental critique of the application of the law-and-economics analysis to intellectual property law from a lawyer’s viewpoint, which is also shared by some prominent economists. It is not a rejection of an economic method for the analysis of economic phenomena which presuppose, or have been created by, the law, such as supply and demand on the market which requires at least contract and property rights (or intellectual property rights) for its functioning. But it is a rejection of the remodelling of legal institutions and decisions in intellectual property law in accordance with certain scientific methods and paradigms developed in (and for) economics, and of the claim that a corresponding analysis could yield any epistemic value for the law and a normative standard of efficiency for future legal policy.

Keywords: Intellectual Property, Economic Methodology, Law-and-Economics, Trade Marks, Patents, Copyright

JEL Classification: B41, K11, K39, L12

Suggested Citation

Rahmatian, Andreas, A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights (May 30, 2013). International Intellectual Property Scholars Series, 17 Marquette Intellectual Property L. Rev. 191 (2013)., Available at SSRN: https://ssrn.com/abstract=2388136

Andreas Rahmatian (Contact Author)

University of Glasgow - School of Law ( email )

School of Law, Stair Building
5-8 The Square
Glasgow, G12 8QQ
United Kingdom

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