IP and Other Regulations
Mark Lemley · 2016
Intellectual property (IP) is a form of regulation. Once we understand IPlaws as government social policies that seek to alter market outcomes, wecan start to think of those laws as part of a broader tapestry ofgovernment rules that affect innovation in a complex variety of ways.Sometimes governments encourage innovation by rewarding it. Sometimes theyencourage innovation by restricting market entry, giving incumbentssupracompetitive returns by insulating them from competition. IP does bothof these at various points.Market-entry regulation is a troubling way to encourage innovation, becausein many cases it is competition, not monopoly, that drives technicalprogress. But a third type of regulation can actually open rather thanclose markets, and offers the prospect of encouraging innovation not byimpeding competition but by encouraging it. Antitrust and net neutralitymay fit within this last category.