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The Legal and Regulatory Environment of Business

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Chapter 11 - Intellectual Property in the Property System CHAPTER 11 INTELLECTUAL PROPERTY IN THE PROPERTY SYSTEM I. LEARNING OBJECTIVES The objective of this chapter is to instill an appreciation for the institution of property and its role in encouraging the maximum production of what people want and need. It reaffirms Chapter 1’s assertion that property – the state’s recognition of a private individual’s right to exclude others from legitimately acquired resources – is fundamental to the modern private market and is conceptually intertwined with the idea of liberty. The chapter focuses on the important area of intellectual property right and examines other applications of property right as it contributes to the concept of “common good.” II. REFERENCES Elias, Stephen, Patent, Copyright & Trademark , 3d ed. Nolo.com (1999). Gollin, Michael A., Driving Innovation , Cambridge U. Press (2008). Intellectual Property Stories , Ginsburg & Dreyfuss eds. Foundation Pr. (2005). Johnston, David, et al, Cyber Law . Stoddart (1997). McJohn, Stephen M., Intellectual Property: Examples and Explanation . 2d ed. Aspen (2006). Merges, Robert P., et al., Property in the New Technological Age . 3rd ed. Aspen (2003). Miller, Arthur R. and Michael H. Davis, Intellectual Property in a Nutshell. Thomson West (2007). Poltorak, Alexander, and Paul Lerner, Essentials of Intellectual Property . Wiley (2002). lll. TEACHING OUTLINE 1. The Justification for Intellectual Property A. Emphasize : (1) That overall people work harder to benefit themselves and their families than to benefit masses of strangers. (2) That people must acquire resources to live and that a system of private property sets up a way of doing this through trade, including the trading of services (employment). 11-1
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Chapter 11 - Intellectual Property in the Property System (3) That along a spectrum the state responds to the problem through state planning at one end and private property (property) at the other. (4) How property incentivizes the generation of new resources and produces the “common good” through excess production of resources and trade. (5) The origin of U.S. intellectual property in Art. 1, Sec. 8. B. Additional Matters for Discussion (1) Property is often taught as a “bundle of rights,” such as the rights to possess, use, and transfer (exchange) resources. But , property can also be envisioned primarily as a negative blanket right, the right to exclude others, including the state. As Professor Merrill wrote (see References), “Give someone the right to exclude others from valued resources… and you give them property. Deny someone the exclusion right and they do not have property.” (2) Since the institution of property promotes individual prosperity and permits unequal accumulation of resources, it is easy to see why some students may associate property with greed and materialism. Students may not appreciate that the resources that property protects are usually limited only at a point in time, not over time, and that the function of the private market is to generate new resources, new wealth.
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