Ian Ayres blogs today about his new book, which compiles his recent work on reconceptualizing the property rule / liability rule divide using insights from options theory. The hook for his blog post, though, is his argument that options theory helps to point the way in IP:
Lots of people in the intellectual property field have pointed out that the law has gone overboard in extending property rights. In lots of contexts, we would do better with mandated licensing fees that give non-owners the option to use and pay a fee.
Iâ€™ve just published a book that not just formalizes the advantage of optional licenses but also shows thereâ€™s a dizzying array of optional entitlement structures that can dominate traditional notions of property. Thereâ€™s even experimental results showing that people bargain more efficiently in the shadow of optional regimes than in the shadow of property rules.
Interesting, though (like almost anyone else who hears the phrase “options theory”) I wonder about moral hazard and other strategic behavior. The conventional view is that property rules encourage investment. Ayres is an unconventional kind of scholar; does he have a different view? Does options theory suggest that compulsory licenses do not depress investment in new creative works? ‘Twil be an interesting read.