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I begin with a dispute over a fox hunt, by which to understand the law of tangible property, then develop that metaphor for the major types of intellectual property. I start with domestic U.S. patent law for the sake of concreteness, and generalize to other jurisdictions and types of intellectual property. In the latter parts of the paper I discuss the international implications of intellectual property, including especially the effects of information spillovers. The last part of the paper describes the hazards in analogizing “trade” in intellectual property rights to trade in goods, and particularly in interpreting international patent data. These hazards motivate the search for a structural model specially adapted to the purpose of valuing international intellectual property rights and rules. The goal is to give economists a simple and integrated framework for analyzing intellectual property across time, jurisdiction and regime type, with an eye towards eventually developing other incentive systems that have the advantages of property (such as decentralized decision-making), but fewer of the disadvantages.

Intellectual property rights and competition policy are intimately related. In this chapter I survey the economic literature analyzing the interaction between intellectual property law and competition law and how the boundary between these two policies is drawn in practice. Recognizing that intellectual property rights and competition law can interact in many different ways, the presentation focuses on several key issues. The economic literature on the interaction between competition law and intellectual property rights shows that these regulatory systems are consistent in terms of basic principles. Significant tensions exist, however, and it is difficult to balance IPR and competition law in practice. The significant differences in approach between the United States and the European Union simply reflect the underlying reality that efforts to achieve a sensible balance do not result in policy harmonization.

This paper focuses on two related questions at the intersection of antitrust and intellectual property law. First, under what circumstances must the holder of a patent or a copyright or the owner of a trade secret allow others to use that intellectual property? Second, under what circumstances can the holder of an intellectual property right use that right to make it difficult for another party to succeed in a related market? These questions have vexed antitrust and intellectual property scholars alike ever since the Federal Circuit ruled in 2000 that patent holders “may enforce the statutory right to exclude others from making, using, or selling the claimed invention free from liability under the antitrust laws,” a ruling that directly contradicted the Ninth Circuit ruling that antitrust liability could be imposed for almost identical conduct, depending on the motivations of the patent holder. The various proceedings in United States v. Microsoft only added fuel to the firestorm of controversy.After briefly retracing the jurisprudential path to see how this situation arose, we propose a solution that primarily involves a variation on the real property concept of adverse possession for the intellectual property space along with a slight extension of the Essential Facilities Doctrine for industries that exhibit network effects. We examine, both for firms with and without market power, how our proposal would resolve the situations presented by large fixed asset purchases, the introduction of entirely new products, and operating systems with network effects. We also demonstrate how our proposal could be applied in the European antitrust enforcement context.

Trade in counterfeit products has been expanding continuously. The emergence of the internet, the process of globalisation as well as the increase of digitalisation have enabled counterfeit products to infiltrate legitimate supply chains, causing harm not only to national economies but also to holders of intellectual property rights (IPR). In this chapter, we analyse the possible solutions that holders of IP rights and their legal representatives have in their fight against the online sale of counterfeit products. To elaborate on this issue, first, we explain the legislation on an international level for IPR protection and its specific characteristics. We explain the conventions on the protection of IPR that are governed by the World Intellectual Protection Organisation (WIPO) and the provisions of the TRIPS (Trade-Related Intellectual Property Rights) Agreement governed by the World Trade Organisation (WTO). We also analyse the national legislative procedure of protecting and enforcing IPR in North Macedonia to explain a possible solution to fight online counterfeit trade. As a case study of this chapter, we explain the work of the Online Enforcement Programme of REACT as a not-for-profit organisation with over 30 years of experience in the fight against counterfeit trade and the challenges that they have in fighting against the online sale of counterfeit products. Since IP law is territorial in its nature as a conclusion, we suggest that a more centralised approach is needed in the fight against the online sale of counterfeit products.

This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and copyright clause. It is animated by the theory of common law copyright, which deliberately reconceptualizes social relations in order to recast them as property, and which has been with us for centuries. This paper investigates the “mythology of common law copyright,” showing how this reconceptualization has worked both historically and in the present day to push the law in a direction that is ostensibly author-centered, but is actually focused on the rights of intermediaries.

There is a tension between the literatures on incomplete contracting and transactions cost economics regarding the importance of ex post governance and the extent to which formal theories of incomplete contracting capture salient aspects of exchange relations. In this paper, we empirically examine how firms structure joint R&D agreements to illuminate how contracts can be incomplete and how governance can matter. We employ a dataset of 96 contracts to construct a taxonomy of the types of mechanisms firms use in organizing collaborative R&D, and indicate how groups of mechanisms line up with various types of contracting hazards. The results suggest that the allocation of property rights over innovations at the time of contracting between R&D partners is an important aspect of contract design. But they also suggest that weak property rights admit scope for other dimensions of contract. In particular, the research indicates that while knowledge spillovers may give rise to appropriability hazards, efforts to contain or channel knowledge spillovers may enable joint venture members to strategically block other members’ follow-on commercialization or research. Firms design joint R&D governance mechanisms to balance spillover hazards and strategic blocking.

The expansion of copyright and the shrinking of the public domain did not begin with the Internet, but the Internet has exacerbated the problem. The threat posed by digital technology has led industries to obtain increasingly absolute protection over their “property.” In this paper I will argue that developing a vibrant public domain is essential for resisting the overextension of copyrights and patents. Developing the public domain as a counterpoint to copyright and patent law is vital to an energized public sphere and by extension a democratic system.

This chapter provides an overview of five modes of intellectual property (IP) protection – patents, designs, copyrights, trademarks, and trade secrets – available in the United States, the European Union, and Japan. After describing the purposes of and principal differences among the five types of IP protection and outlining the advantages of each form, the chapter provides country- and region-specific information. The authors highlight the aspects of IP law in which international harmonization has, or has not yet, occurred, and offer insights into the relative advantages of various national and regional IP protection systems.

This paper examines the evolution of Intellectual Property (IP) commercialization in historical perspective. IP Law imposes an incentive structure that determines the extent of societal investment in those assets. From their inception at the dawn of the Industrial Revolution, IP has expanded due to the introduction of new technologies. Property rights allocation over these assets has traditionally been assigned to governments centralizing the recognition of such property. For a long period of time, government intervention was critical to allow IP commercialization; hence, the political economy of IP was dictated by the prevailing ideology of policymakers in favor or against market transactions. The resulting clash of ideologies has marked the position of developing countries seeking exclusions from open IP commercialization to obtain temporary relief from foreign competition of technology producing countries, as well as that of industrialized countries, seeking to export their technologies overseas. The emergence of blockchain technology, as a decentralized transaction exchange protocol that makes intermediary centralized institutions (i.e. governments) certifying IP irrelevant over a large portion of intellectual property (i.e., trade secrets and copyrights) will create revolutionary institutions facilitating IP commercialization, such as NFTs. We examine this historical evolution in the context of legal institutions governing intellectual property transactions and technology transfer.