Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on the one-size-fits-all principle. However important or unimportant, inventions and original works of authorship receive the same scope of protection, for the same period, backed by the same variety of legal remedies. Metaphorically speaking, all intellectual property is equal under the law. This equality comes at a heavy price. The equality principle gives all creators access to the same remedies, even when those remedies create perverse incentives. Moreover, society overpays for innovation by inflicting on society more monopoly losses than are strictly necessary to incentivize production. In this Article, we propose a solution for these problems in the form of a self-tailored system of intellectual property rights. The self-tailored system would allow inventors and creators to self-select the optimal protection for their intellectual works. Working from the bottom up, our self-tailored system would give each innovator a basic package of intellectual property rights and enforcement powers and then allow her to add additional rights and legal elements in exchange for a fee. Our self-tailored system would reduce wasteful litigation while encouraging wider dissemination and more extensive use of inventions and expressive works. In addition, our proposal would lower the social cost of granting monopoly protection to intellectual goods while at the same time, maintaining an adequate level of economic incentives to create and invent. Accordingly, our self-tailored system would constitute a marked improvement over the extant one-size-fits all design of intellectual property rights. Unlike other proposals for reform that seek to improve access to expressive works and inventions via the use of compulsory licenses and other coercive policies, our model is purely voluntary. It respects authors’ and inventors’ autonomy and uses market mechanisms — specifically, pricing — to recalibrate our intellectual property system in a way that improves societal well-being