Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations

摘要: As intellectual property rights have gained in prominence, businesspeople and scholars alike complained of the increasing burden obtaining licenses and, failing this, litigating disputes. Intellectual experts, especially scholars, responded to this burgeoning thicket with a series initiatives expedite deal making by means statutory compulsory licensing. These are classic examples "liability rulesh" foundational legal entitlements framework Guido Calabresi A. Douglas Melamed. They appear be compromise: they address mushrooming transactional hurdle created new stronger rights, while preserving most economic advantages that accompany strengthened rights. In Article, Professor Merges argues proposals create more rooted faulty theoretical framework. Based on survey diverse institutions various industries cultivated handle transactions, contends "repeat players" (individuals firms frequently need exchange rights) can often do take steps overcome bottlenecks. Whether through copyright collectives, such as ASCAP BMI music industry, or undertakings patent pools automobile aircraft manufacturing, those recurring transact invest administrative structures lower costs exchanging Among other functions, these collective organizations promulgate rules procedures for placing monetary value members' thus conserve transaction either it easier identify locate rightholders, creating occasion repeat-play, reciprocal bargaining, versus costly one-shot exchanges. Drawing body academic literature known institutional economics, explains analyzes origins operation organizations. He also entitlement theory must adjusted recognize possibility will evolve out background strong More generally, he points ought incorporate dynamic understanding importance contracting after granted. applies his observations insights an important contemporary controversy: whether Congress legislate license digital content needed multimedia industry. should not. Given underlying consistent experience industries, existing force industry participants conduct transactions. Indeed, analysis evidence indicates is already occurring.