Intellectual Property in Institutional Context

A course offered to students at the Tel Aviv University Buchmann Faculty of Law, May 2018. This page offers a summary of the course and a list of required and optional readings.

ADMINISTRATIVE INFORMATION

Course name:
INTELLECTUAL PROPERTY LAW IN INSTITUTIONAL CONTEXT

Professor:
Michael J. Madison, University of Pittsburgh, Pittsburgh, Pennsylvania, USA
https://michaelmadison.net

Contact:
michael.j.madison@gmail.com

I may schedule regular “office hours” if requested, but I am happy to meet with students informally at times convenient to all.

Course description:
Intellectual property law, policy, and theory should be understood not only in the context of rights and obligations affecting individual actors but also in the context of institutions that generate, preserve, and distribute innovative and creative material: markets, firms, collaboratives, and informal groups. Examples may include patent pools, open source software collaboratives, Wikipedia, research universities, and informal communities of creators or performances, such as chefs de cuisine. IP law plays different roles in different institutional contexts. The purpose of this course is to examine and compare a selection of such IP institutions.

Course meeting times:
As noted below in the LIST OF READINGS.

Attendance policy:
Attendance at all course meetings are mandatory. Timely attendance is mandatory. Please DO NOT BE LATE.

Students are expected to have completed the reading for each meeting in advance of the meeting and to be prepared to discuss it.

Course requirements:
The grade for the course will be based on a single final exam. For poor preparation or poor quality participation, I may reduce the final grade. For high quality participation, I may increase the final grade.

Background on IP doctrines:
I will assume that students have acquired at least basic familiarity with core doctrines of intellectual property law, including both copyright and patent law. (This course will spend relatively little time discussing trademark law.) This course is not intended to or designed to teach students the content of the law itself. For students who need a refresher, the following resource should be helpful: What is Intellectual Property?, from the World Intellectual Property Organization (WIPO), http://www.wipo.int/about-ip/en/index.html

LIST OF READINGS

A list of reading assignments follows. All readings may be downloaded for free from the links provided below. At the bottom of this page, a list of links to the required readings is provided.

A set of slides to accompany the lectures and the readings can be viewed and downloaded here. 

Course Meeting 1, 6 May 2018
Topic:
An Introduction to Institutional Perspectives on Property Law

To be discussed:
What are institutions, and why study them? What are the relationships among legal systems and other social and cultural systems? In what respects is the individual actor (person) the proper focus of the legal system? In what respects is the social or cultural system itself the proper focus of the legal system?

Required reading:
Robert C. Ellickson, “Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County,” 38 Stanford Law Review 623-87 (1986) [67 pages]

Optional reading:
Robert C. Ellickson, “Order Without Law: How Neighbors Settle Disputes” (Harvard U.P. 1994). This book is an elaboration and extension of the research published as “Of Coase and Cattle.”

Reading is available:
(Required) http://digitalcommons.law.yale.edu/fss_papers/466/
(Optional) https://www.amazon.com/Order-without-Law-Neighbors-Disputes/dp/0674641698

Biographical note:
Professor Robert Ellickson is Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law at Yale Law School. ”Of Coase and Cattle” was produced when he was Robert E. Paradise Professor of Natural Resources Law at Stanford Law School.

Course Meeting 2, 8 May 2018
Topic:
Institutional Economics and IP Law, or, Relationships Among Law, Firms, Industries, and Markets

To be discussed:
Here, we explore traditional or classical questions of information production in relationship to the hierarchical firm in market context and in relationship to formal IP law. The framework for analysis is motivated explicitly by economic logic. In what respects does formal IP law assist firms in organizing and pursuing research and development in information, or “innovation”? In what respects does IP law impose barriers to innovation? In what respects is IP law irrelevant?

Required reading:
Alvin K. Klevorick, Richard R. Nelson, Sidney G. Winter, and Richard C. Levin, “Appropriating the Returns from Industrial Research and Development,” Brookings Papers on Economic Activity (1987), No. 3. [Read pp. 1-36 of the pdf (pp. 783-818 of the article)]

Optional reading:
Robert P. Merges & Richard R. Nelson, “On the Complex Economics of Patent Scope,” 90 Columbia Law Review 839 (1990)

Reading is available:
(Required) https://www.brookings.edu/bpea-articles/appropriating-the-returns-from-industrial-research-and-development/
(Optional) https://works.bepress.com/robert_merges/8/

Biographical note:
Professor Alvin K. Klevorick is Deputy Dean and John Thomas Smith Professor of Law at Yale Law School and Professor of Economics at Yale University. Professor Richard R. Nelson is George Blumenthal Professor of International and Public Affairs, Business, and Law, Emeritus, Columbia University. Professor Sidney G. Winter is Professor Emeritus of Management at the Wharton School, University of Pennsylvania. Richard C. Levin is Frederick William Beinecke Professor Emeritus of Economics at Yale University and served from 1994 to 2013 as President of Yale. He later served as CEO of Coursera, Inc.

Course Meetings 3 & 4, 10 May & 13 May 2018
Topic:
Mandatory and Default Legal Rules, and the Economics of Institutional Design

To be discussed:
Here, the analysis of economic logic of information institutions is extended. In what respects are rules of IP law designed by lawmakers to enable firms in markets to design their own preferred systems for governing innovation? In what respects are rules of intellectual property designed so that firms are obliged to accept those rules as-is?

Required reading:
Robert P. Merges, “Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations,” 84 California Law Review 1293 (1996) [103 pages]

Optional reading:
Mark A. Lemley, “Contracting Around Liability Rules,” 100 California Law Review 463 (2012)

Reading is available:
(Required) https://scholarship.law.berkeley.edu/facpubs/2118/
(Optional) https://scholarship.law.berkeley.edu/californialawreview/vol100/iss2/6/

Biographical note:
Professor Robert Merges is Wilson, Sonsini, Goodrich & Rosati Professor of Law at University of California, Berkeley. Professor Mark Lemley is William H. Neukom Professor of Law at Stanford Law School.

Course Meetings 5 & 6, 15 May & 16 May 2018
Topic:
Toward a New Institutionalism in IP

To be discussed:
Here, the economic logic of information production and IP is challenged, in part. In what respects does intellectual property law take the classic hierarchical firm as a precondition of innovation? In what respects should intellectual property law encourage or support the diversification of the economy and culture via other formal and informal forms of social organization?

Required reading:
Yochai Benkler, “Coase’s Penguin, or, Linux and The Nature of the Firm,” 112 Yale Law Journal 369 (2002) [78 pages]

Optional reading:
Yochai Benkler, “The Wealth of Networks: How Social Production Transforms Markets and Freedom” (Yale U.P. 2007). This book is an elaboration and extension of the research published as “Coase’s Penguin.”

Reading is available:
(Required) https://www.yalelawjournal.org/article/coases-penguin-or-linux-and-the-nature-of-the-firm
(Optional) http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf

Biographical note:
Yochai Benkler is Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School. He received his LL.B. from Tel Aviv University, Faculty of Law, in 1991.

Course Meeting 7, 18 May 2018
Topic:
New Institutionalism and Innovation

To be discussed:
Here, we continue to introduce departures from traditional or classical economic frameworks for understanding IP and institutions of information production. In what respects does the classic theory of the firm explain the actual behavior of organizations, both informal and formal, concerning innovation and creation?

Required reading:
Peter Lee, “Innovation and the Firm: A New Synthesis,” Stanford Law Review (2018) (forthcoming) [51 pages]

Reading is available:
(Required) http://madisonian.net/downloads/tau2018/5-lee.pdf

Biographical note:
Professor Peter Lee is Professor of Law at University of California, Davis.

Course Meeting 8, 21 May 2018
Topic:
New Institutionalism and Property

To be discussed:
Here, we begin to depart further from economically-motivated discussions of information production and IP law. In what respects do traditional theories of IP law, such as theories of the firm or public goods theory in relation to the tragedy of the commons, fail to diagnose the conditions in which contemporary information production occur? If legal rules are solutions to social problems, then what social problems exist in contemporary social and cultural life?

Required reading:
Julie E. Cohen, “Copyright as Property in the Post-Industrial Economy: A Research Agenda,” 2011 Wisconsin Law Review 141-165 [22 pages]

Optional reading:
Julie E. Cohen, “Configuring the Networked Self: Law, Code, and the Play of Everyday Practice” (Yale U.P. 2012).
This book is a prequel to Professor Cohen’s next book, a part of which was published as “Copyright as Property.”

Reading is available:
(Required) https://scholarship.law.georgetown.edu/facpub/610/
(Optional) http://www.juliecohen.com/page5.php

Biographical note:
Professor Julie Cohen is Mark Claster Mamolen Professor of Law and Technology at Georgetown University.

Course Meetings 9 & 10, 22 May & 24 May 2018
Topic:
Everything Old is New Again? New Institutions for Property

To be discussed:
In what respects can contemporary social and cultural problems in information production be solved without formal legal institutions? Here, the questions posed by Professor Ellickson, used to introduce the themes of the seminar, return in modified form.

Required reading:
Dotan Oliar and Christopher Sprigman, “There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy,” 94 Virginia Law Review 1787 (2008) [81 pages]

Optional reading:
Kal Raustiala and Christopher Sprigman, “The Knockoff Economy: How Imitation Sparks Innovation” (Oxford U.P. 2012)

Kate Darling and Aaron Perzanowski, eds., “Creativity without Law: Challenging the Assumptions of Intellectual Property” (NYU Press 2017).
Both books are elaborations and extensions of themes developed in “There’s No Free Laugh.”

Reading is available:
(Required) http://www.virginialawreview.org/volumes/content/theres-no-free-laugh-anymore-emergence-intellectual-property-norms-and
(Optional) https://www.amazon.com/Knockoff-Economy-Imitation-Sparks-Innovation/dp/0195399781
(Optional) https://www.amazon.com/Creativity-without-Law-Challenging-Intellectual-ebook/dp/B01E02RNSK

Biographical note:
Professor Dotan Oliar is Professor of Law at the University of Virginia. He received his He received his LL.B. from Tel Aviv University, Faculty of Law, in 1999. Professor Christopher Sprigman is Professor of Law at New York University.

Professor Kal Raustiala is Professor of Law the University of California, Los Angeles (UCLA). Kate Darling is Research Specialist at the MIT Media Lab and a Fellow at the Harvard Berkman Center. Professor Aaron Perzanowski is Professor of Law at Case Western Reserve University.

Course Meeting 11, 25 May 2018
Topic:
New Institutionalism Beyond Property

To be discussed:
In what respects does analysis of “property institutions” adequately explain the importance and functions of IP systems? In what respects are IP systems both products of and contributors to social systems of other sorts, and in particular social systems that produce and reproduce hierarchy and difference in society?

Required:
Dan L. Burk, “On the Sociology of Patenting,” 101 Minnesota Law Review 421 (2016) [32 pages]

Reading is available:
(Required) http://www.minnesotalawreview.org/articles/on-the-sociology-of-patenting/

Biographical note:
Professor Dan Burk is Chancellor’s Professor of Law at the University of California, Irvine.

Course Meeting 12, 27 May 2018
Topic:
From Property to Governance

To be discussed:
Here, we consider the utility of a framework for research into institutional production of information that is empirical rather than theoretical and conceptual, and that tries explicitly to combine understanding of economic logic, legal rules, and informal institutions. In what respects does this new framework advance our understanding of IP law and information production? In what respects does it leave questions unanswered?

Required reading:
Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg, “The University As Constructed Cultural Commons,” 30 Washington University Journal of Law & Policy 365 (2009) [40 pages]

Optional reading:
Brett M. Frischmann, Michael J. Madison, and Katherine J. Strandburg, “Governing Knowledge Commons” (Oxford U.P. 2014)
Katherine J. Strandburg, Brett M. Frischmann, and Michael J. Madison, “Governing Medical Knowledge Commons” (Cambridge U.P. 2017)
Both books are elaborations and applications of the research framework first published in “The University as Constructed Cultural Commons.”

Reading is available:
(Required) https://openscholarship.wustl.edu/law_journal_law_policy/vol30/iss1/12/
(Optional) https://www.amazon.com/Governing-Knowledge-Commons-Brett-Frischmann/dp/0199972036/
(Optional) https://doi.org/10.1017/9781316544587

Biographical note:
Professor Brett Frischmann is The Charles Widger Endowed University Professor in Law, Business and Economics at Villanova University. Professor Michael Madison is Professor of Law at the University of Pittsburgh. Professor Katherine Strandburg is Alfred B. Engelberg Professor of Law at New York University.

Course Meeting 13, 29 May 2018
Topic:
What Have We Learned?

To be discussed:
What questions have been asked during this course? Which questions have been answered, and how? What questions and issues remain for further analysis and research?

Required reading:
Yochai Benkler, “Law, Innovation, and Collaboration in Networked Economy and Society,” 13 Annual Review of Law & Social Science 231 (2017) [19 pages]

Reading is available:
(Required) http://www.annualreviews.org/doi/10.1146/annurev-lawsocsci-110316-113340

REQUIRED READINGS, IN ONE PLACE

End.