The Upside of Intellectual Property's Downside

62 Pages Posted: 6 May 2009 Last revised: 20 Jul 2017

See all articles by Christopher Anthony Cotropia

Christopher Anthony Cotropia

University of Richmond - School of Law

James Gibson

University of Richmond School of Law

Date Written: February 23, 2009


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.

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

Suggested Citation

Cotropia, Christopher Anthony and Gibson, James, The Upside of Intellectual Property's Downside (February 23, 2009). Available at SSRN: or

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 )

203 Richmond Way
Richmond, VA 23173
United States
804-287-6398 (Phone)
804-289-8683 (Fax)


Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics