Keith Hylton Defends Intellectual Property Law

By TAP Staff Blogger

Posted on March 21, 2013


Professor Keith Hylton defends intellectual property (IP) law in his book, Laws of Creation – Property Rights in the World of Ideas. With co-author Ronald Cass, Professor Hylton carefully examines the IP doctrines that have been developed over many years in patent, copyright, trademark, and trade secret law. In each area, legislatures and courts have weighed the benefits that come from preserving incentives to innovate against the costs of granting innovators a degree of control over specific markets.

These doctrines are now under pressure from detractors who claim that changing technology undermines the case for intellectual property rights. But Cass and Hylton explain how technological advances only strengthen that case. In their view, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, the greater the disincentive to invest time and money in inventions and creative works.

Earlier this year, Keith Hylton, Professor of Law at Boston University School of Law, and Ronald Cass, Dean Emeritus, Boston University School of Law, joined Professor F. Scott Kieff at the Federalist Society to discuss their book. The event was videotaped, and that recording appears below.

In this discussion, Professor Hylton describes the policy framework that he and co-author Ronald Cass use to explain how IP law can be justified.

The policy framework in this book is explicitly utilitarian. We have a very simple policy framework that we take through several areas of intellectual property law. We march through several big parts of IP law and apply the same policy framework to explain how the law is consistent, can be understood or justified in terms of the policy framework.

Two main concerns in this policy framework: static costs and dynamic costs. Or I could call it static costs and dynamic benefits.

Static costs – I’m referring to the fact that intellectual property allows the person who is granted that property some kind of monopoly. It’s not a real monopoly in the case where there are substitutes to the product. But it lessens competition; it gives some degree of monopoly power. There is a static costs associated with a monopolization. Monopolies restrict output, raise prices; the static cost is the cost to consumers because a lot of consumers can’t afford the monopolized product. So IP law to some extent imposes those costs on society.

But there’s the other side which is the dynamic benefit. Or we could flip it around and say the reduction in dynamic costs. And that is that intellectual property rights give people incentive to invest, to create new product, to convert ideas into useful things.

So the policy framework we’re using through this book looks at the simple tradeoff between static costs and dynamic costs; static costs and dynamic benefits. Very simple. But I think it’s a powerful tool that we can take and use throughout IP law and make sense of what’s in the case law.

Widely recognized in the areas of law and economics, Keith Hylton has published numerous articles in American law journals and peer-reviewed law and economics journals. Professor Hylton joined the Boston University School of Law faculty in 1995. He teaches courses in antitrust, torts and labor law. In addition to teaching, Professor Hylton serves as a contributing editor of the Antitrust Law Journal, co-editor of Competition Policy International and editor of the Social Science Research Network's Torts, Products Liability and Insurance Law Abstracts.