Intellectual property, antitrust, and the rule of law: between private power and state power
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Ariel Katz
Abstract
This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property (IP), antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily
© 2016 by Theoretical Inquiries in Law
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Articles in the same Issue
- Theoretical Inquiries in Law
- Research Article
- Introduction
- Research Article
- The regulatory state in the information age
- Research Article
- The policy battle over information and digital policy regulation: a canadian perspective
- Research Article
- Technological tattletales and constitutional black holes: communications intermediaries and constitutional constraints
- Research Article
- Platform neutrality: enhancing freedom of expression in spheres of private power
- Research Article
- Taking notice seriously: information delivery and consumer contract formation
- Research Article
- Thoughts on techno-social engineering of humans and the freedom to be off (or free from such engineering)
- Research Article
- Freedom to tinker
- Research Article
- Technological neutrality: recalibrating copyright in the information age
- Research Article
- Intellectual property, antitrust, and the rule of law: between private power and state power
- Research Article
- Compounding errors: why heightened regulation and taxation are bad antidotes for recessions and income inequality
