Reconceptualizing the Role of Intellectual Property Rights in Shaping Industry Structure

72 Vand. L. Rev. 1197 (2019).

UC Davis Legal Studies Research Paper

88 Pages Posted: 23 Oct 2018 Last revised: 12 Jul 2019

See all articles by Peter Lee

Peter Lee

University of California, Davis - School of Law

Date Written: 2019


Technological and creative industries are critical to economic and social welfare, and the forces that shape such industries are important subjects of legal and policy examination. These industries depend on patents and copyrights, and scholars have long debated whether exclusive rights promote industry consolidation (through shoring up barriers to entry) or fragmentation (by promoting entry of new firms). Much hangs in the balance, for the structure of these IP-intensive industries can determine the amount, variety, and quality of drugs, food, software, movies, music, and books available to society. This Article retheorizes the role of patents and copyrights in shaping industry structure by examining empirical profiles of six IP-intensive industries: biopharmaceuticals; agricultural biotechnology, seeds, and agrochemicals; software; film production and distribution; music recording; and book publishing. It makes two novel arguments that illuminate the impacts of patents and copyrights on industry structure. First, it distinguishes along time, arguing that patents and copyrights promote the initial entry of new firms and early-stage viability, but that over time industry incumbents wielding substantial IP portfolios often absorb such entrants, thus reconsolidating those industries. It also distinguishes along the value chain, arguing that exclusive rights most prominently promote entry in “upstream” creative functions—from creating biologic compounds to coordinating movie production—while tending to promote concentration in downstream functions related to commercialization, such as marketing and distribution of drugs and movies. This Article provides legal and policy decision makers with a more robust understanding of how patents and copyrights promote both fragmentation and concentration, depending on context. Drawing on these insights, it proposes calibrating the acquisition of exclusive rights based on the size and market position of a rights holder.

Keywords: intellectual property, patents, copyrights, vertical integration, market entry, fragmentation, concentration, antitrust, biotechnology, pharmaceuticals, agricultural biotechnology, seeds software, movies, music, books, publishing

Suggested Citation

Lee, Peter, Reconceptualizing the Role of Intellectual Property Rights in Shaping Industry Structure (2019). 72 Vand. L. Rev. 1197 (2019)., UC Davis Legal Studies Research Paper, Available at SSRN:

Peter Lee (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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