Decoding and Recoding Natural Monopoly, Deregulation, and Intellectual Property

Intellectual property scholarship has recently demonstrated a shift from the metaphor of property to that of natural monopoly. In this Arti-cle, the author responds to the metaphor of natural monopoly with a three-part argument. First, the author identifies the use of natural mo-nopoly rhetoric in intellectual property. Second, the author decodes the uses of natural monopoly rhetoric using economic theory. Third, the au-thor recodes natural monopoly language in intellectual property debates by reference to criticisms of natural monopoly in the debate over deregu-lation of traditional natural monopolies, such as public utilities and air-lines. The recoding of intellectual property through the terms of deregu-lation helps identify three often overlooked, but compelling, interests in intellectual property reform: (1) the role of the consumer, (2) the role of competition, and (3) the role of administrative agencies. The identifica-tion of these three interests highlights ways in which intellectual property can be deregulated and transformed into a new regulatory regime that is responsive to interests other than the private property interests of the in-tellectual property owner. The Article concludes by applying this revital-ized conception of intellectual property to the policy debates over exper-imental use, fair use, and administrative reform in patents and copyright.

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