Academic journal article Vanderbilt Law Review

Games Economists Play

Academic journal article Vanderbilt Law Review

Games Economists Play

Article excerpt

When Professor Reichman called me about this symposium, I was intrigued. With the successive introduction of the photocopy machine, the videotape, computerization, digitization, the Internet, as well as a host of biotechnological discoveries, the problems facing the creative industries have changed dramatically. This accumulation of developments has altered the economic foundations on which intellectual property law is based and has pushed those of us in the field into a period of reconceptualization in which economic analysis is particularly fruitful. Thus, I was quite taken with the idea of bringing intellectual property and economics scholars together to promulgate a research agenda and I was, of course, delighted to be asked to contribute my thoughts.

Before I set these out, I would like to begin with a question that may seem far afield, but which will, I believe, shed light on the agenda I propose. The question is this: why are there no continental lawyers here? Given Professor Reichman's prominence in international-particularly European-circles, it should seem quite puzzling. Or rather, it would be quite puzzling to me, but for my experience at the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law in Munich, Germany. The Institute does wonderful, insightful work, including excellent empirical studies. But while there, I was struck by the paucity of interest in economic theory among its scholars. As one of my colleagues there explained, continental legal theorists certainly examine economic facts, but they are not of the view that economic theory has a large role to play in lawmaking. This thinking is, of course, very much at odds with the core premises of those assembled here, and I would like to take a moment to explore its basis.

One reason for the difference in views on economic analysis may be specific to intellectual property. The argument here would be that although Europeans can be as theory-oriented as Americans, continental thinking about intellectual property has traditionally focused on moral arguments-claims about the personality of the author and his intimate connection to his work.' In contrast, intellectual property regimes in the United States are constitutionally defined as resting on instrumental-economic-precepts.2 As a result, economic analysis arguably has more to contribute here than it does abroad. But this cannot be the whole answer. It does not, for example, explain apparent continental indifference to the use of economic theory with respect to other legal issues, such as tort questions. Moreover, the rationales underlying intellectual property regimes are coalescing: as Professor Thomas Dreier has pointed out, there is more economics in continental rationales for protection than is usually acknowledged,3 and the TRIPS Agreement has brought these systems into even closer alignment.4 Thus, a mode of analysis that is utilized in the U.S. should now be relevant to Europe, even if it lacks intuitive appeal there.

A more general reason for the difference may have something to do with civil versus common law traditions. In civil law countries, judges are expert fact finders, but as to law, they are said to do no more than apply what the legislature has set out; there is no need for economic thinking because there is no room to deviate from statutory directives.5 Here, the situation is quite different: common law judges do make law, and they have come to realize that it cannot be done well without input from other disciplines.6 But this cannot be the whole of the matter either. Judicial activism is another thing that is not often acknowledged abroad but exists anyway. Particularly as new technologies are introduced, continental judges are faced with questions that their legislatures could not have anticipated. Without an acknowledged law-making tradition to fall back on, economic thinking should be rather attractive to them, especially when the need for new law derives from the economic upheavals currently experienced by the information industries. …

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