IP² Working Paper No. 16013
by Richard A. Epstein
Original date: December 1, 2016
Intellectual Property (IP) law contains at least six major branches: patents, copyright, trademarks (including trade names), rights of publicity, misappropriation, and trade secrets. Each branch has its own separate history that rests on a complex mixture of common law principles augmented by statutory and administrative materials. Each embodies delicate tradeoffs on what materials should be treated as private property and what materials belong in the public domain. Scholars of IP law today fall into two main camps: those who accept the model of strong property rights, and those who prefer a larger public domain out of concern that patent and other IP ‘thickets’ will develop and block technological innovation, competition and creativity. This wide-ranging conflict manifests itself in discussions of both the scope of IP protection and the choice of remedies in the event of infringement. For example, property-oriented theorists tend to prefer stronger injunctions and stiffer measures of damages than public domain theorists.