@article{42032,
      recid = {42032},
      author = {Lemley, Mark A.},
      title = {Ex Ante Versus Ex Post Justifications for Intellectual  Property},
      pages = {67 pages},
      abstract = {The traditional theory of IP is that the prospect of  future reward provides an ex ante incentive to innovate. An  increasingly common justification for longer and more  powerful IP rights is ex post - that IP will be "managed"  most efficiently if control is consolidated in a single  owner. This argument is made, for example, in the prospect  and rent dissipation literature in patent law, in  justifications for expansive rights of publicity, and in  defense of the Bono Copyright Term Extension Act. Taken to  an extreme, this argument justifies perpetual protection  with no real exceptions. Those who rely on this theory take  the idea of IP as "property" too seriously, and reason that  since individual pieces of property are perpetually  managed, IP should be too. But IP isn't just like real  property; indeed, it gives IP owners control over what  others do with their real property. The ex post  justification is strikingly anti-market. We would never say  today that the market for paper clips would be "efficiently  managed" if put into the hands of a single firm. We rely on  competition to do that for us. But that is exactly what the  ex post theory would do.  In this paper, I explore the sub  rosa development of this ex post theory of IP. I argue that  the basis for continued control is the assumption that the  value of IP rights will be dissipated if they are used too  much. This argument is fundamentally at odds with the  public goods nature of information. It stems from a  particular sort of myopia about private ordering, in which  actions by individual private firms are presumed to be  ideal and the traditional role of the market in  disciplining errant firms is ignored.},
      url = {http://tind.wipo.int/record/42032},
}