Standards As Intellectual Property: An Economic Approach

David Friedman, Santa Clara University Law School Professor

1/12/2008
(Original Publish Date: 3/1/1994)

In a series of cases decided over the past two decades, courts have tried to define the protection provided by copyright law to computer programs. One issue often implicit and occasionally explicit in such cases is what protection, if any, ought to be provided to standards--a kind of intellectual property that does not fit neatly into the existing classifications. In this essay, I attempt first to explore the nature of intellectual property and intellectual property law and then to consider how standards fit into the analysis. As will become clear, my objective at this point is not to produce clear answers to the question of what the legal rules ought to be but rather to show how such answers might be produced and on what facts they would depend.