More Property Rules than Property? The Right to Exclude in Patent and Copyright

Patent and copyright rely more consistently on property rules than property law itself. Property law relies instead on liability rules in cases where injunctive relief or punitive damages would seem disproportionate to the defendant¿s culpability or create conditions for opportunism. Neither patent nor copyright provide the same leeway even though these remedies raise the same potential problems in both contexts. This Article explains why this arrangement is backwards given the greater notice failures, inexhaustibility, and importance of cumulative production for intellectual works relative to tangible property.

Just as lawmakers reshaped real property law to accommodate the demands of industrial production, lawmakers should recalibrate IP law to serve the needs of intellectual production. Possibilities include a ¿reasonable search defense¿ to limit relief against infringers who operated in good faith and the adoption of compulsory licenses to deal with holdout strategies and advance other major policy objectives.