Intellektuelles Eigentum? (IH)

Mark A. Lemley: Property, Intellectual Property, and Free Riding

On this long-standing view, free competition is the norm. Intellectual property rights are an exception to that norm, and they are granted only when – and only to the extent that – they are necessary to encourage invention. The result has historically been intellectual property rights that are limited in time, limited in scope, and granted only to authors and inventors who met certain minimum requirements. This fundamental principle is under sustained attack. Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems. They rely on the economic theory of real property, with its focus on the creation of strong rights in order to prevent congestion and overuse and to internalize externalities. They rely on the law of real property, with its strong right of exclusion. And they rely on the rhetoric of real property, with its condemnation of “free riding” by those who imitate or compete with intellectual property owners. The result is a legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seek out and punish virtually any use of an intellectual property right by another. In this article, I suggest that the shift to property rights and the rhetoric of free riding is fundamentally misguided. The economic theory of real property is quite properly concerned primarily with the imposition of negative externalities – the imposition of costs on another. This is because real property tends to be a zero-sum environment – if I use a piece of land, you can’t use it.. If I overgraze a commons, that overgrazing imposes costs on anyone else who might use the commons. Property rights prevent the creation of those negative externalities by internalizing the effects of the use of real property. But invention and creation are not zero-sum; far from it. Applying property theory to intellectual property involves the internalization not of negative externalities, but of positive externalities – benefits conferred on another. Real property theorists have not generally confronted the issue of positive externalities. I argue that internalizing positive as opposed to negative externalities is not a proper goal of tangible property rights except in unusual circumstances, for several reasons: because there is no need to fully internalize benefits as there is with harms, because efforts to capture positive externalities may actually reduce them, leaving everyone worse off, and because the effort to capture such externalities invites rent-seeking.

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