The proprietary model of intellectual property
In recent years we have witnessed within the law and economics literature the emergence of a new framework for the analysis of intellectual property, alternative to the incentives/public good paradigm on which we elaborated in Chapter 3 . This new framework can be entitled the ‘proprietary paradigm’ of IPR. Rather than asking how to allocate resources for optimizing investments in creative and innovative activities, this approach focuses on the organizational function of IPR and the management of intangible assets once created. Consequently, this approach implicitly overlooks basic foundations of the incentives paradigm, the most important of which is the initial justifi cation of allocating IPR. In other words, the new law and economics paradigm departs from the teleological normative justifi cation for granting intellectual property rights in the fi rst place – maximizing society’s welfare, assuming the ‘natural’ right of a creator of information to own the creation. This version of the proprietary approach to IPR is constructed upon the economic justifi cations of real property, primarily the ‘tragedy of the commons’, which justifi es property rights in land and tangibles.