Intellectual Property in the Cathedral

Abstract

Dan L. Burk* Intellectual Property in the Cathedral** A variety of commentators have called for the increased application of liability rules, includ- ing compulsory licenses, to intellectual property. Such arguments are well taken, but unfor- tunately stop short of advocating the full range of potential intellectual property entitle- ment allocations. Property theory offers a range of allocative structures, including reverse liability rules and “put”-type entitlements that could be beneficially applied to intellectual property. This article describes several such rules and argues for their consideration in the canon of intellectual property entitlements. Introduction In this article I propose to explore a number of ramifications of the entitlement structure chosen for intellectual property. Reto Hiltyl, echoing theoretical work by ferry Reichmanz and others, has called for greater use of the compulsory license in intellectual property systems, a call with which I concur. Indeed, my only point of disagreement will be that this call is not enough. My argument will be that liability rules such as the compulsory license are indeed appropriate in many more instances than we have tended to employ them, but that even this rec- ognition is too timid. Property theory provides us with a range of possible entitle- ment constructions, including the classic property rule and liability rule, but by no means limited to these. I will suggest that not only liability rules, but several other kinds of related allocation rules, ought to be more routinely used in intel- lectual property cases than they have been. While many of my examples will be drawn from common law remedies, the structure is equally applicable to incor- poration within civil codes, and as I will suggest, administrative process as well. * Chancellor's Professor of Law, University of California, Irvine. I thank Reto Hilty, Dana Beld- iman, and participants in the Bucerius Law School conference on “Access Challenges in the 21*‘ Century” for their comments on a previous version of these ideas. ** Copyright 2012 by Dan L. Burk. Excerpted from ACCESS CHALLENGES IN THE 215' CENTURY (Dana Beldiman et al. eds., forthcoming 2013). 1 See, e.g., Reto Hilty, Licensing for Innovation, Competition, and Creation in INTELLECTUAL PRO- PERTY AND INNOVATION: A FRAMEWORK FoR 215‘ CENTURY GROWTH 48 (Ian Hargreaves 81 Paul I-lofheinz, eds., 2012). 2 See, e.g., Jerome H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights in Sub- patentable Innovation, 53 VAND. L. REV. 1743 (2000). ZGEIIPJ 4 (2012), 405-418 ISSN 1867-237X © 2012 Mohr Siebeck