ABSTRACT
In Chapters 3 and 4 we focused on normative economic analysis of intellectual property. We elaborated on the incentives/public goods paradigm and examined its theoretical and practical shortcomings. Subsequently, we dealt with the ‘tragedy of the commons’ framework and criticized the shift of canon law and economics literature towards the proprietary model of intellectual property. This chapter will bring on board some insights of positive analysis. We will examine through three theoretical perspectives of law-making what are likely to be the rules generated by legislatures regarding the protection of IP, explain more closely arrangements within specific legal systems and the possible sources for differences between various countries and evaluate to what extent the existing legal arrangements correspond to the desirable legal regime discussed in previous chapters. The last point highlights why some treatment of IPR from a positive analysis perspective is essential for a complete picture of normative theories.
