One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights

Michael Carroll, American University, Washington College of Law


The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably. Provisionally accepting the assumptions of the traditional economic case for intellectual property, this Article scrutinizes the presumption of uniformity in patent and copyright law and makes three contributions. First, it suggests three overarching metrics policymakers should use when choosing among innovation-related policies: (1) the government’s comparative ability to direct resources toward innovation likely to lead to success; (2) the policy’s “administrability;” and (3) the questions of political economy likely to effect a policy’s success. From this analysis, the case for intellectual property rights emerges as a second-best solution based on the uncertainty of innovation and the comparatively better information possessed by private innovators. Second, this Article shows that these same three metrics supply the case for uniform intellectual property rights within the distinct domains of patent and copyright law as a default initial domestic policy. Third, intellectual property law is part of a dynamic system, and information obtained over time will support proposals to tailor patents and copyrights to improve their performance as innovation policy. Indeed, the distinction between patent and copyright law is a form of high-level tailoring, and in addition patent and copyright law each has been tailored in a number of ways by Congress, the federal courts, and administrative agencies. Intellectual property scholarship lacks a framework for assessing existing and proposed tailoring measures. This Article proposes such a framework derived from the logic of the traditional economic case for intellectual property. This framework applies to a wide range of pending policy questions, such as whether, or to what extent, software, business methods, tax shelters, or living organisms should be patentable and whether, or to what extent, statutory licenses should be granted for certain types of copyrighted works or for certain types of use, and whether fashion design should receive sui generis protection.