184° Mercoledi di Nexa - A Law and Political Economy of Intellectual Property

Описание: This lecture introduces 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, with a special focus on rights in digital or otherwise disembodied information goods. Third, to point to key revisionary implications of such an analysis in terms of how such rights should (and should not) be shaped.

A two-fold claim lies at the center of the argument. First, there exists no plausible first-order normative case for the key feature of modern IP, namely the conferral of exclusionary rights over nonrival informational goods. The case for such rights lies solely in second-order institutional considerations of harnessing market price signals to channel the rate and direction of innovative activity. Second, however, this institutional mechanism has an in-built expansionary tendency that exerts distortionary pressures on both the substantive protection afforded by IP regimes and on the conceptual modes of doctrinal analysis deployed within them. Such distortions disembed IP by unmooring its doctrines from any plausible social aims.

To combat these distortions requires three sets of prescriptions, which may be placed under the umbrella of “putting markets in their place”: (1) doctrinal analysis internal to IP regimes needs to safeguard against a “rights creep” that is the legal correlate of an economic logic of ceaseless commodification; (2) substantive analysis of IP policies needs to embed market imperatives (of maximizing exchange-value) within non-market values (such as those of democratic equality); (3) finally, IP protection itself needs to be embedded within non-market forms of innovation and cultural policy.


TALHA SYED teaches Intellectual Property, Antitrust, Torts, and Legal Theory at UC Berkeley Law. His research focuses on these fields, as well as theories of distributive justice, all from a “law and political economy” (LPE) perspective. He has most recently published “Does Pharma Need Patents?” in the Yale Law Journal and is working on the foundations of a distinctive LPE approach to legal and social theory. In that vein, has recently participated in a series of debates and symposia on this front, including here and here.