Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms
11 Pages Posted: 14 Jan 2014
Date Written: 2013
In his Article Contracts as Technology Kevin Davis makes an analogy between technological innovation and contractual innovation and suggests that contractual innovation, like technological innovation, can both add value to exchange and promote trade. Davis presents a theory of the uses and sources of contractual innovation that has at its core the idea that “[t]he principal determinant of the value of adopting a contract is the value of the changes in behavior it induces.” The Article then draws on this theory and the analogy to technological innovation to explore the incentives of law firms, businesspeople, trade associations, and a variety of nonprofit institutions to engage in contractual innovation, even though there is no equivalent of copyright, trademark, or patent protection for contractual language. It concludes that given the lack of intellectual property protection for contractual language, potential contractual innovators of all types are likely to make socially sub-optimal investments in contractual innovation.
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