A funny idea hit upon me while reviewing intellectual property panels at forthcoming law and economics conferences: there are, roughly speaking, many more patent scholars supportive of patents in the technology industries, than copyright scholars holding similar view of digital copyrights.

The emerging pattern across conferences is that patent panels will include a diverse range of scholars representing a fairly wide spectrum of viewpoints, while copyright panels will often be critical of digital copyrights on whole, and hold similar line-ups. It may be easier to gather a group of patent scholars that reflect the gamut of perspectives, whereas a “balanced” make-up of copyright scholars would require several specific names from academia, that are more active in publishing and teaching, and seldom participate in conferences.

What about "intellectual property" scholars?

Well, my primary interest is technological innovation, which the language of patents maps closer to than does copyright. Intellectual property scholars in innovation policy focus more on patents than copyrights. Further, there are simply more patent scholars out there. Patents are inherently an interdisciplinary field; encompassing broader specialties, whereas copyright is a more insular policy space, where you're either a copyright "expert" or you're not.

Analogous to Professor Beebe's claim that the prongs of the fair use test lend themselves to statistical analysis, there is similar effect with patent and copyright issues: a definite correlation, or "stampeding effect," of scholars who are generally supportive of intellectual property rights, market based incentive theories of IP, and current issues under patents (the benefits of licensing, patents in the software industry, patent pools, patents as means to recoup R&D investment) and copyrights (the DMCA, DRM, fair use).

The discrepency in “supportive viewpoints” between patents and copyrights, then, can be accomodated by the observation that while intellectual property scholars will touch on patents more frequently than copyrights, many copyright scholars do not touch at all on intellectual property or patent issues.

As far as an explanation for the divergent pool of patent and copyright scholars, I'll point to an excerpt from Professor Mark Lemley and Dan Burk, who suggest that the coherence of patent policy may create common ground on which pro-market scholars can agree, while the complex origins of copyright do not lend it similar benefit:

Over a decade ago, John Wiley famously wrote that "the doctrine of patent law coheres while the doctrine of copyright does not." His basic premise was economic: Patent law was coherent because it started from a widely-shared utilitarian baseline.

Copyright law, by contrast, has produced no similar agreement on goals, with the result that, as Jamie Boyle put it, "in copyright law--to a greater extent than in most other fields of legal doctrine--there is a routine and acknowledged breakdown of the simplifying assumptions of the discourse, so that mundane issues force lawyers, judges, and policymakers to return to first principles."

posted by Noel Le @ 1:16 PM | Academia, Access: Commons, Fair Use, Orphan Works, Public Domain, Big Tent, DMCA, DRM & Watermarks, etc., Markets: Business, Investment & Innovation, Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(4)