Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course.
In Creation without Restraint: Promoting Liberty and Rivalry in Innovation
, Christina Bohannan and Herbert Hovenkamp analyze the current state of competition (antitrust) and intellectual property laws, and propose realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP "misuse," which the authors suggest needs a broader reach but narrower remedies.
Bohannan and Hovenkamp also evaluate the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the "innovation commons," or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.
"Creation without Restraint is a call to promote innovation by promoting competition. As the authors point out, if we want real competition, it is intellectual property, not antitrust, law that we need to fix."
--Mark A. Lemley, William H. Neukom Professor, Stanford Law School
"This is a terrific book. Creation without Restraint uses antitrust law as a starting point for a thorough rethinking of patent and copyright policy. It develops the important idea, adapted from antitrust, that an IP statute should be interpreted in light of its underlying purpose. The authors show how economic analysis, so influential in antitrust, can be applied to IP law, and offer useful, provocative proposals for reform. Creation without Restraint is a must-read for anyone who wants to understand-and improve-the law's treatment of innovation."
--C. Scott Hemphill, Professor of Law, Columbia Law School
"Few regulatory problems are more vexing than the relationship between competition and innovation. Bohannan and Hovenkamp's investigation of the problem is sensible, balanced, and comprehensive. Creation without Restraint is a wonderful book for anyone wanting to get up to speed on the key contemporary questions in innovation policy."
--Daniel A. Crane, Professor of Law, University of Michigan
"By reconceptualizing IP law with an eye toward its constitutional roots, the authors make a compelling case for related doctrinal reforms. They are not the first to identify the need for less ambiguous patent claims, for restrictions on the remedies available to patent holders who do not use the patented technology, and for shorter but renewable copyright terms. The
fundamental contribution of Creation Without Restraint is that the authors' expertise in both IP and antitrust yields novel, nuanced, and persuasive justifications for these and other proposals."
--Iowa Law Review