Tuesday, April 05, 2005

Can Intellectual Property Experience the Tragedy of the Commons?

In both my Patent Law and Trademark Law classes, the question of overexploitation was brought up. It is something that I have been thinking about, so I thought that I would make it my first Fed. Soc. Blog post.

In my patent law class, the theory was that giving joint inventors equal rights to independently exploit an invention might lead to an inefficient overexploitation of the invention. I can see that it might discourage joint works, but that in turn would encourage joint inventors to contract ahead of time to prevent the independent exploitation of the invention. I, however, doubt that patented technology can be over exploited to the point where it degrades the value of the technology. The professor argued that if two or more parties have access to a patented technology, they might each individually seek to quickly overproduce to maximize their individual gain and therefore inefficiently overproduce. If anything overexploitation would be a bonus to the consumer, but I think that an economic analysis would predict that all of the producers would only produce to the point where they would each still make a marginal profit on each unit produced. It is unlikely that the producers would ignore economic realities and start producing at a level where they are selling each unit at a marginal loss. I guess that it is possible that some producers in some markets will make mistakes in the heat of competition, but the dynamic of competition drives a market to produce at the optimal level. Plus, IT IS NOT LIKE WE HAVE A PROBLEM WITH THE OVEREXPLOITATION OF EXPIRED PATENTS. Again, this competition might undermine the incentive to invent by joint inventors, but it would also seem that any inventor concerned about this loss in market power would simply contract out of this possibility instead of declining to invent at all.

Then in my trademark class, we were talking about the right of publicity. I stated my belief that a utilitarian analysis would teach against granting a right of publicity. My professor then responded that Posner argues that exact opposite, but also said that she didn’t think that Posner was a very good economist. I have a lot of respect for Posner, so this bothered me. I have not read Posner’s dissertation on this (I can’t find the article on lexis-nexus), but after a bit of research it does seem that Posner does argue that granting the right of publicity does prevent an overexploitation of a person’s likeness, etc. and also gives the person an incentive to develop their personality and fame. I completely disagree. 1) I don’t believe that society needs any extra incentive to get people to try to be famous. 2) I am not even sure if any celebrity could truly be overexploited any more than they are currently, and I do not believe that there is an optimal level of exploitation for a personality. Popular celebrities are overexposed anyways by the media, which are exempted from the right of publicity anyways. One might feel that celebrities have a moral right to their personalities, likenesses, etc., but I feel that free speech concerns should trump these moral rights.

My thinking is that Intellectual Property in general is not something correctly analyzed by a tragedy of the commons analysis because IP is not a limited resource, but by definition an unlimited resource. The reproduction (or additional use of) IP does not cause the original (or first use of) to be reduced in quality. Some people in my TM class have argued that they do not value expensive purses because other people can get knockoffs, but this seems to be an elitist mentality that values exclusion over the public good. I do not think that we should recognize such elitist values.

I welcome comments.

(P.S. This is my first blog post so please forgive me for any mistakes.)


Charles Iragui said...


I'll write onto the blog the comment that I gave to you today in Commercial Law.
Right to Publicity should not, in my view, be defended on economic grounds but rather on defamation/nuisance grounds, a kind of tort. Further, the exploitation of another's identity is a kind of theft (it can even be "slavery" in the use of a celebrity image to sell a product) and that should be reason enough to ban it.
Tangentially, in France it is illegal, to speak of freedom of press and speech, to publish a photograph of a person w/o that person's permission. Paula Jones is a good example of why this is a good thing: the WaPo shamelessly published only unflattering pix of her in mid-speech.



Geoffrey Shipsides said...


All of those could be justifications for a right of publicity, but my post was directed specifically at the "tragedy of the commons" utilitarian argument for a right of publicity that Posner apparently supports. I have no problem with preventing false advertising where the use of a celebrity photo wrongly indicates an indorsement.

Further, our right to publicity laws do not protect against tabloids and other "news" outlets using a person's picture or likeness. Critism and parady are also exempted from the right of publicity. US Right to Publicity laws mainly only protect the economic interests of the celebrity.

I also do not think that we want to adopt French type laws that restrict the freedom of speech. We would have to do away with the first amendment before we could do that.