Taking the Protection-Access Tradeoff Seriously
Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.' Certainly economists and economically oriented legal academics have given the field the attention it is due.
I am far from being a sophisticated economic thinker, although I admire those who are and the insights they have brought to my understanding of what is at stake in intellectual property. My comments are more practical in nature. They involve the tension that arises throughout the law of intellectual property and unfair competition between protection of intellectual achievement and public access to intellectual products. This tension is reflected in the central questions: When are intellectual property rights appropriate and what is their proper scope? Economics seems to provide an apt description but an inadequate basis for answering these questions. And there lies, in my view, one of the reasons for the trend throughout intellectual property to enlarge property rights at the expense of access. For those of us who deem this trend problematic, economic analysis seems increasingly unhelpful in formulating a response protective of the public domain.