ABSTRACT
Theories of intellectual property (IP) tend to come in two varieties: ‘normative’ theories that concern themselves with justifying (or not) IP rights, and ‘positive’ theories that focus on explaining the effects of such rights. Yet the distinction between these is far from airtight, since a positive analysis of effects is surely germane to many normative theories while, from the other side, any explanation of effects leads almost ineluctably to the question of how to evaluate them. Thus, it is no surprise that the most prominent theory of IP, economic analysis, straddles the normative/positive divide, by simultaneously seeking to analyze and to evaluate the role of such rights in improving social welfare.
The present Article seeks to introduce an alternative explanatory and evaluative framework for the analysis of IP to that of economic analysis: law and political economy (LPE). Its aims are three-fold: First, to delineate the central ways that an LPE explanatory framework differs from that of law-and-economics. Second, to distill the core insights of that LPE approach for the analysis of modern IP rights, in both its explanatory and evaluative facets. Third, to point to key critical and revisionary implications of such an analysis, in terms of how IP rights should (and should not) be shaped.
Specifically, an LPE analysis emphasizes two fundamental points regarding the operation of IP rights. First, from a justificatory point of view, no plausible first-order normative case exists for the key feature of IP, namely the conferral of exclusionary rights over nonrival informational goods. Rather, the case for such rights lies in second-order institutional considerations, of harnessing market price signals to channel the rate and direction of innovative activity. Second, however, from an explanatory point of view, this institutional mechanism has an in-built expansionary tendency that exerts distortionary pressures both on the substantive protection provided by IP regimes, as well as on the conceptual modes of doctrinal analysis deployed within them. This pair of insights leads in turn to three sets of revisionary implications, which may usefully be placed under the umbrella of ‘putting markets in their place’. First, doctrinal analysis internal to IP regimes needs vigilantly to safeguard against a ‘rights creep’ that is the legal correlate of an economic logic of ceaseless commodification. Second, substantive analysis of IP protection needs to embed market considerations (of maximizing satisfaction of existing consumer preferences) within non-market values of democratic equality (of equitable access to conditions of individual and social self-determination). Finally, IP protection must itself be embedded within non-market forms of innovation and cultural policy.
Syed, Talha and Bracha, Oren, A Law and Political Economy of Intellectual Property (forthcoming 103 Texas Law Review (2025)) (January 31, 2025).
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