Managing the Intellectual Property Sprawl

Professor Merges, despite the centrality of creative persons to his argument, organizes a set of ideas that are conducive to refocusing intellectual property law on users. I present this user-focused argument in this Article through the following five Parts. Part II explains my suggested approach to questions about the design of intellectual property law—an approach based on the new institutional economics and the work of Ronald Coase. Part II also addresses objections to this approach.

Part III identifies the user in Professor Merges’s high-level principles grounded in Locke, Kant, and Rawls. Part IV follows this argument with a closer examination of the four midlevel principles that inform intellectual property. These midlevel principles, I argue, are more cogent when expanded to include all users and not just creative persons. Finally, in Part V, I make the case for including users within the practices of intellectual property.

These practices are framed in terms of the three broad goals of any system of property rights: stability, management, and autonomy. Part VI concludes.