IP Rights and Technological Platforms

Robert P. Merges, University of California, Berkeley - School of Law

12/15/2008
(Original Publish Date: 12/1/2008)

This paper is about intellectual property rights (IPRs) and platform technologies. After a brief introduction explaining some basics of networks, standards and platforms, I turn to three policy issues. The first is the role of IP in what might be termed platform policies, the decisions by courts and regulators concerning whether and how to promote multi-party access to important digital platforms such as media player hardware, cell phones, PCs, and the like. I argue that for the most part there is no need for IP law to directly promote interoperability, since market competition among competing platform technology owners will usually protect consumers quite well. Voluntary interoperability at various levels is the norm, an arrangement facilitated by the fact that property rights can and often are waived for strategic reasons. The apparent potential of IP law, and individual IP rights, to restrict access and harm consumers must therefore be seen in the context of competitive battles in which IP owners very selectively enforce their rights. Where coerced access through IP rules does prove necessary, it should be promoted sparingly and strictly ex post, only after rights have issued and their deployment and enforcement are shown to create anticompetitive effects. Second, I discuss optimal policy with respect to platform-content combinations, e.g., the question of whether to regulate or prohibit exclusive content licensing for a single platform, for example, the Apple iTunes/iPod system. Again I argue that competition, together with the divergent interests of content and platform owners, will usually protect consumers without the need for excessive regulation of platform-content deals. Finally, I consider ways to better accommodate traditional IP doctrines and policies to the need for flexibility and openness in platform battles, in particular, the need for a robust set of rules that permit an IP owner to credibly commit to open access to IPRs with a binding full or partial dedication of IP rights to members of the public or specific sub-groups. The idea is to more fully institutionalize the right of an IP owner to implement an owned but open platform strategy. I characterize this new sort of binding commitment to openness as the right to include - by analogy with the traditional notion of property as involving at its core a right to exclude.