Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms

11 Pages Posted: 14 Jan 2014

See all articles by Lisa Bernstein

Lisa Bernstein

University of Chicago - Law School; University of Oxford - Centre for Corporate Reputation

Date Written: 2013

Abstract

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.

Suggested Citation

Bernstein, Lisa E., Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms (2013). New York University Law Review, Vol. 88, No. 1, May 2013; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 672. Available at SSRN: https://ssrn.com/abstract=2378937

Lisa E. Bernstein (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

University of Oxford - Centre for Corporate Reputation

Park End Street
Oxford OX1 1HP
United Kingdom

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