Lemley, Mark. "Ex Ante versus Ex Post Justifications for Intellectual Property" (2004) The University of Chicago Law Review 129-149

Lemley, MarkEx Ante versus Ex Post Justifications for Intellectual Property 2004
The University of Chicago Law Review 129


The traditional ex ante theory is the incentive theory, which dictates that IPRs should be granted only where necessary. “The new ex post justifications, by contrast, endorse a greater and perhaps unlimited duration and scope of intellectual property rights.” (p131)

Two ex post justifications:

(1) Incentives to manage, maintain and improve

  • Used to support the Sonny Bono Copyright Term Extension Act
  • Argued that “lack of copyright protection…restrains dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights” (see p134)
  • Lemley writes, “The argument that a single company is better positioned than the market to make efficient use of an idea should strike us as jarringly counterintuitive in a market economy.” (p135) He uses the example of the exclusive right to produce and sell paper clips – we know that companies will produce paper clips even without exclusive rights, and we can predict that exclusive rights would do nothing except increase price and decrease supply (pp136-136)
  • Lemley also argues that empirical evidence strongly supports the intuition of the market – a comparison of © works from the 1920s with PD works from 1910s and 1920s shows that far more PD works than © works are distributed to the public (pp136-137)
  • Creators are generally not good managers of their works and there is no reason to suppose that their grandchildren will be. If there must be an extension of rights for management, it makes more sense to give these rights to professional managers, such as archivists etc. (p138)
  • There is no need to worry that no one will distribute a work without monopoly incentive. If people are willing to pay enough to justify printing copies of a book, then copies will be printed. If people are not willing to pay even marginal costs of printing, then granting exclusive rights will not solve the problem – people who are not willing to pay marginal cost will not pay the supracompetitive price sole owners can command (p138).
  • Also fails to reward or encourage improvers. It is not true that the initial inventor is better suited to control research than the market. The logical answer is that the creator of an improvement should receive an IP right, not that the creator of the original invention should receive all rights (see pp139-140)

(2) Preventing “overgrazing” of ideas (the tragedy of the commons arguments)

  • Information cannot be depleted
  • Lemley looks at this justification more from the point of view of trade marks law and rights of publicity – so his analysis is less relevant to copyright here.

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