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Kieff, F. Scott; Paredes, Troy A. --- "The basics matter: at the periphery of intellectual property" [2005] ELECD 95; in Takeyama, N. Lisa; Gordon, J. Wendy; Towse, Ruth (eds), "Developments in the Economics of Copyright" (Edward Elgar Publishing, 2005)

Book Title: Developments in the Economics of Copyright

Editor(s): Takeyama, N. Lisa; Gordon, J. Wendy; Towse, Ruth

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843769309

Section: Chapter 9

Section Title: The basics matter: at the periphery of intellectual property

Author(s): Kieff, F. Scott; Paredes, Troy A.

Number of pages: 32

Extract:

9. The basics matter: at the periphery
of intellectual property
F. Scott Kieff and Troy A. Paredes

9.1 INTRODUCTION

Controversies often arise at the interfaces where intellectual property (`IP')
law meets other topics in law and economics, such as property law, contract
law, and antitrust law.1 Participants in the debates over how to mediate these
interfaces often view each interface as a special case deserving unique treat-
ment under the law.2 The doctrines of copyright and patent misuse are cases
in point: they graft select antitrust principles onto copyright or patent law,
even though there is an entirely distinct body of law ­ antitrust law ­
designed to deal with the putative concerns about competition that
allegedly give rise to misuse. We argue that such specialized approaches to
IP are built by selectively exalting and ignoring particular aspects of the
positive and normative frameworks from distinct substantive areas of law ­
IP law, antitrust law, property law, and contract law. Overlooking the total-
ity of these frameworks frustrates the nuanced equilibria to which they each
have evolved, as well as the full complement of important dynamic forces
that affects each legal framework as it continues to develop.3
Instead, we argue that the better approach focuses on the `basics' ­ or
core principles and features ­ of each distinct area of law.4 Our approach
avoids specialized frameworks for analysing IP law and the interfaces it
shares with other bodies of law. To do so, the `basics approach' has both a
procedural ...