The Law and Economics Analysis of Intellectual Property: Paradigmatic Shift from Incentives to Traditional Property

Abstract

The value of intellectual property today exceeds the value of physical property and Intellectual property rights are on a continuous path of expansion (with the commodification of information). These developments beg a serious discussion, revisiting the philosophical justifications of IPR, especially in light of the technological revolution of the Internet and related technologies. One of the more powerful contemporary discourses on such justifications is the economic analysis of law approach. The paper provides a critical analysis of what used to be the main Law and Economics paradigm for the normative analysis of intellectual property rights - the incentives / public goods model. It further discusses an alternative economic model - the Tragedy of the Commons, which in recent years has been twisted to a new Propriety paradigm, pre-assuming intellectual creations to be a natural object of property, and focusing on the management of intellectual property rather than on its initial justifications. The papers ends with some tentative thoughts on the more general concept of the prime property right of ownership.