One for All: The Problem of Uniformity Cost in Intellectual Property Law

Abstract

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual property policymaking. There are three approaches for reducing uniformity costs: (1) granting real options to obtain or maintain intellectual property rights (such as renewable terms); (2) using standards rather than rules to define rights, thereby making their application more context-sensitive; and (3) tailoring rights legislatively or judicially. This Article focuses on the ways in which current law deploys these approaches to reduce uniformity cost and argues that recent changes in the law have exacerbated the problem of uniformity cost.

Keywords: Patent, copyright, intellectual property, law and economics, property