Rights tailoring
Michael W. Carroll ’09, Professor of Law and Faculty Director of the Program on Information Justice and Intellectual Property at American University, “One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights,” Ohio State Law Journal, 70, no 6, 2009, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1044&context=facsch_lawrev, Accessed 7-17-2024 by NT-RS
5. Demand-Side Features—Positive Spillovers Even if uniform rights suited information producers to a tee, a good argument for tailoring rights could be derived from evidence of certain positive externalities, or spillovers, on the demand side. Professors Brett Frischmann and Mark Lemley argue separately and together that efficient patent and copyright law must be limited and leaky in order to encourage or allow certain types of uncompensated demand-side sharing of valuable information.240 Their arguments call for tailoring to ensure that the law is particularly permissive with respect to patented or copyrighted information that functions as “infrastructure.”241 In particular, Frischmann argues that [footnote omitted] information should be managed as a commons rather than through private, exclusive rights when:
(1) The resource may be consumed nonrivalrously; (2) Social demand for the resource is driven primarily by downstream productive activity that requires the resource as an input; and (3) The resource may be used as an input into a wide range of goods and services, including private goods, public goods, and nonmarket goods.242