The Regulatory Turn in IP

7 Pages Posted: 7 Nov 2012 Last revised: 6 Apr 2013

Mark A. Lemley

Stanford Law School

Date Written: November 1, 2012

Abstract

We don’t want a "Mother, may I?" regulatory regime for innovation. A regulatory regime that requires permission to enter the market or develop a new product is a problem for innovation because it relies on the government, not the innovator, to decide the course of innovation. Giving private entities "Mother, may I?" control over entry is no better; while market competition is efficient, private decisions by a single actor controlling a market generally aren't.

Unfortunately, IP law increasingly looks like a regulatory regime, not a common law mechanism for internalizing social costs. The Copyright Act has more and more regulatory characteristics, and copyright owners increasingly seek to put the government in the position of having to approve new media technologies. Patent law too seems to impose entry barriers, not just in the pharmaceutical and biotechnology industries, where government regulation expressly prevents entry, but also in the costs patent enforcement imposes on start-ups in the software industry. The turn towards regulatory IP does not bode well for innovation and competition.

Keywords: intellectual property, regulation, copyright, patent

JEL Classification: O34, K2

Suggested Citation

Lemley, Mark A., The Regulatory Turn in IP (November 1, 2012). Harvard Journal of Law and Public Policy, Vol. 36, No. 1, Forthcoming; Stanford Law and Economics Olin Working Paper No. 435; Stanford Public Law Working Paper No. 2172440. Available at SSRN: https://ssrn.com/abstract=2172440

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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