The Regulatory Turn in IP
Mark A. Lemley
Stanford Law School
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
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.
Number of Pages in PDF File: 7
Keywords: intellectual property, regulation, copyright, patent
JEL Classification: O34, K2
Date posted: November 7, 2012 ; Last revised: April 6, 2013