GOVERNANCE OF INTELLECTUAL RESOURCES AND DISINTEGRATION OF INTELLECTUAL PROPERTY IN THE DIGITAL AGE.
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| Title: | GOVERNANCE OF INTELLECTUAL RESOURCES AND DISINTEGRATION OF INTELLECTUAL PROPERTY IN THE DIGITAL AGE. |
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| Authors: | Menell, Peter S.1 |
| Source: | Berkeley Technology Law Journal. Fall2011, Vol. 26 Issue 4, p1523-1559. 37p. |
| Subjects: | Intellectual property, Epstein, Richard, Technological innovations, Copyright, Patents, Cathedrals, Economic development, Economic policy |
| Abstract: | The Supreme Court's decision in eBaj v. MercE-xchange brought into focus whether intellectual property policy should follow reflexively in the wake of tangible property doctrines or instead look to the distinctive market failures and institutional features of intellectual resources. Professor Richard Epstein argues in a recent article that "virtually all of the current malaise in dealing with both tangible and intellectual property stems from the failure to keep to the coherent rules of acquisition, exclusion, alienation, regulation, and condemnation that are called for by the classical liberal system … ." Professor Epstein purports to validate what he calls the "carryover hypothesis": that principles governing tangible property "do, and should, influence the growth of intellectual property law," and that apart from durational limits on patents and copyrights, there are essentially no significant departures from the private property mold needed to optimize intellectual property. This Article responds to Professor Epstein's premises, framework, and analysis and provides a broader and richer analytical framework for promoting innovation and creativity in the digital age. In so doing, it demonstrates that intellectual property does not and should not resemble Professor Epstein's idealized classical liberal cathedral. To the contrary, "disintegration" characterizes the intellectual property landscape and hewing to a classical liberal private property paradigm overlooks valuable prescriptions for the evolution of the intellectual property field. While the institution of private property that has developed for tangible resources provides valuable insights into how to encourage efficient economic development, it is not a panacea for all resources, contexts, and societies. Careful consideration of the characteristics of intellectual resources, comparative institutional analysis, and empirical research provide the keys to promoting innovation and creativity. [ABSTRACT FROM AUTHOR] |
| Copyright of Berkeley Technology Law Journal is the property of University of California School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.) | |
| Database: | Engineering Source |
| FullText | Links: – Type: pdflink Text: Availability: 0 |
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| Header | DbId: egs DbLabel: Engineering Source An: 75198669 AccessLevel: 6 PubType: Academic Journal PubTypeId: academicJournal PreciseRelevancyScore: 0 |
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| Items | – Name: Title Label: Title Group: Ti Data: GOVERNANCE OF INTELLECTUAL RESOURCES AND DISINTEGRATION OF INTELLECTUAL PROPERTY IN THE DIGITAL AGE. – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22Menell%2C+Peter+S%2E%22">Menell, Peter S.</searchLink><relatesTo>1</relatesTo> – Name: TitleSource Label: Source Group: Src Data: <searchLink fieldCode="JN" term="%22Berkeley+Technology+Law+Journal%22">Berkeley Technology Law Journal</searchLink>. Fall2011, Vol. 26 Issue 4, p1523-1559. 37p. – Name: Subject Label: Subjects Group: Su Data: <searchLink fieldCode="DE" term="%22Intellectual+property%22">Intellectual property</searchLink><br /><searchLink fieldCode="DE" term="%22Epstein%2C+Richard%22">Epstein, Richard</searchLink><br /><searchLink fieldCode="DE" term="%22Technological+innovations%22">Technological innovations</searchLink><br /><searchLink fieldCode="DE" term="%22Copyright%22">Copyright</searchLink><br /><searchLink fieldCode="DE" term="%22Patents%22">Patents</searchLink><br /><searchLink fieldCode="DE" term="%22Cathedrals%22">Cathedrals</searchLink><br /><searchLink fieldCode="DE" term="%22Economic+development%22">Economic development</searchLink><br /><searchLink fieldCode="DE" term="%22Economic+policy%22">Economic policy</searchLink> – Name: Abstract Label: Abstract Group: Ab Data: The Supreme Court's decision in eBaj v. MercE-xchange brought into focus whether intellectual property policy should follow reflexively in the wake of tangible property doctrines or instead look to the distinctive market failures and institutional features of intellectual resources. Professor Richard Epstein argues in a recent article that "virtually all of the current malaise in dealing with both tangible and intellectual property stems from the failure to keep to the coherent rules of acquisition, exclusion, alienation, regulation, and condemnation that are called for by the classical liberal system … ." Professor Epstein purports to validate what he calls the "carryover hypothesis": that principles governing tangible property "do, and should, influence the growth of intellectual property law," and that apart from durational limits on patents and copyrights, there are essentially no significant departures from the private property mold needed to optimize intellectual property. This Article responds to Professor Epstein's premises, framework, and analysis and provides a broader and richer analytical framework for promoting innovation and creativity in the digital age. In so doing, it demonstrates that intellectual property does not and should not resemble Professor Epstein's idealized classical liberal cathedral. To the contrary, "disintegration" characterizes the intellectual property landscape and hewing to a classical liberal private property paradigm overlooks valuable prescriptions for the evolution of the intellectual property field. While the institution of private property that has developed for tangible resources provides valuable insights into how to encourage efficient economic development, it is not a panacea for all resources, contexts, and societies. Careful consideration of the characteristics of intellectual resources, comparative institutional analysis, and empirical research provide the keys to promoting innovation and creativity. [ABSTRACT FROM AUTHOR] – Name: AbstractSuppliedCopyright Label: Group: Ab Data: <i>Copyright of Berkeley Technology Law Journal is the property of University of California School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.) |
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| RecordInfo | BibRecord: BibEntity: Languages: – Code: eng Text: English PhysicalDescription: Pagination: PageCount: 37 StartPage: 1523 Subjects: – SubjectFull: Intellectual property Type: general – SubjectFull: Epstein, Richard Type: general – SubjectFull: Technological innovations Type: general – SubjectFull: Copyright Type: general – SubjectFull: Patents Type: general – SubjectFull: Cathedrals Type: general – SubjectFull: Economic development Type: general – SubjectFull: Economic policy Type: general Titles: – TitleFull: GOVERNANCE OF INTELLECTUAL RESOURCES AND DISINTEGRATION OF INTELLECTUAL PROPERTY IN THE DIGITAL AGE. Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: Menell, Peter S. IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 09 Text: Fall2011 Type: published Y: 2011 Identifiers: – Type: issn-print Value: 10863818 Numbering: – Type: volume Value: 26 – Type: issue Value: 4 Titles: – TitleFull: Berkeley Technology Law Journal Type: main |
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