Maximizing Intellectual Property: Optimality, Synchronicity, and Distributive Justice

Authors

David Blankfein-Tabachnick

Document Type

Article

Abstract

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves as a corrective to a seemingly systematic omission in the mature scholarly literature surrounding intellectual property. This omission is namely the underappreciated role that optimal tax rates and optimal legal rule construction play in the context of a distributive account of intellectual property and innovation policy. This Article concludes that for maximizing accounts of intellectual property—whether aimed at net-aggregate wealth or welfare, or in egalitarian fashion, aimed at the economic position of the least well-off—rules governing intellectual property are on a conceptual par with legal rules traditionally conceived of as merely operating in the “background” of intellectual property. Intellectual property has traditionally been understood as the legal doctrine surrounding copyrights, patents, and trade secrets. But legal institutions well beyond these areas of law are crucial to setting optimal incentives surrounding innovation and the governance and control of knowledge goods; this broader range of legal institutions can be described as innovation policy. This Article shows that maximizing principles demand a certain synchronicity among entitlement-governing legal rules, and those distinct maximizing principles demand unique sets of optimal legal rules—inclusive of intellectual property and innovation policy—and, further, that each respective set of legal rules must be constructed in light of a unique optimal tax rate. These observations have important ramifications for ongoing disputes in intellectual property scholarship—for example, the debate over monopolistic legal rules versus taxation and prizes—as well as ramifications for doctrinal intellectual property disputes concerning the copyright/patent divide and bankruptcy’s treatment of intellectual property.