The global struggle over geographic indications

European Journal of International Law

Volumn 18, Issue 2, 2007, Pages 337-365

  Raustiala, Kal ^a,b   Munzer, Stephen R ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b Ronald W Burkle Center for International Relations   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547902520     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm016     Document Type: Article

References (151)

1. Agreement on Trade-Related Aspects of Intellectual Property Rights, signed in Marrakesh, Morocco on 15 Apr. 1994, available at: www.wto.org/ english/docs_e/legal_e/legal_e.htm.
2. This effort has continued in the wake of the Uruguay Round via the many 'Trips-plus' bilateral agreements that have been negotiated. See Drahos, 'BITS and BIPS: Bilateralism in Intellectual Property', 4 J World Int'l Pty L (2001) 791. Much of the recent debate over TRIPS involves public health concerns.
3. See, e.g., Abbott,'The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health', 99 AJIL (2005) 317;
4. Sun, 'The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health', 15 EJIL (2004) 123.
5. See, e.g., Bhagwati, 'From Seattle to Hong Kong', 84 Foreign Affairs (2005) 2.
6. Cf. Maskus and Penubarti, 'How Trade-Related Are Intellectual Property Rights?', 35 J Int'l Econ L (1995) 227.
7. There are numerous other terms associated with this phrase, including Protected Designation of Origin (PDO), Protected Geographical Indication (PGI), Appellation d'Origine Controlée (AOC), and so forth. There are subtle differences among these terms, which are found in various national and international laws, but for our purposes the distinctions are not especially germane. Hence we follow the existing literature and simply use 'geographic indication'.
8. Broude, "Taking "Trade and Culture" Seriously: Geographical Indications and Cultural Protections in WTO Law', 26 U Penn J Int'l Econ L (2005) 1. Broude notes that some 40% of WTO disputes have involved edible products.
9. The first mention of GIs in international law is in the 1883 Paris Convention on Industrial Property. In national and regional practice they date much further back, perhaps to the ancient Greeks and Romans. B. O'Connor, The Law of Geographic Indications (2004).
10. The EU has entered, in good faith, into negotiations with its partners in the WTO with a view to further liberalizing world trade in agricultural commodities. This will mean, in practice, less export subsidies to our farmers. This policy is embodied in the Commission's proposed review of the Common Agricultural Policy: Compete internationally on quality rather than quantity. Yet, efforts to compete on quality would be futile if the main vehicle of our quality products, GIs, are not adequately protected in international markets': European Commission, 'Why Do Geographical Indications Matter to Us?' (30 July 2003), available at: http://europa.eu.int/comm/trade/issues/sectoral/ intell_property/argu-en.htm.
11. See also Evans and Blakeney, 'The Protection of Geographical Indications After Doha: Quo Vadis?', 9 J Int'l Econ L (2006) 575;
12. Blakeney, 'Stimulating Agricultural Innovation', in J.H. Maskus and K.E. Reichman (eds), International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (2005).
13. The Doha Declaration of 2001, WTO Ministerial Declaration, WTO Doc. WT/ MIN (01)/DEC/W/1 (14 Nov. 2001). Recent WTO litigation over GIs is discussed Infra.
14. The most thorough treatments of GIs in international law are O'Connor, supra note 6, Broude, supra note 5,
15. and J. Hughes, 'The Spirited Debate Over Geographic Indications' (unpublished manuscript on file with authors). None of these works, however, critically assesses the fundamental property rights claims that undergird GI protection.
16. W. M. Landes and R. A. Posner, The Economic Structure of Intellectual Property Law (2003), ch. 7;
17. K. Maskus, Intellectual Property Rights in the Global Economy (2000);
18. Economides,'The Economics of Trademarks', 78 Trademark Reporter (1988) 523;
19. Landes and Posner, 'Trademark Law: An Economic Perspective', 30 J L & Econ (1987) 265.
20. An earlier brief version of this argument was made in Raustiala and Sprigman, 'Eat, Drink and be Wary: Why the US Should Oppose the WTO's Extending Stringent Intellectual Property Protection of Wine and Spirit Names to Other Products', 12 Dec. 2002, available at: www.findlaw.com.
21. On TRIPS and the rise of international intellectual property law generally see Gervais, 'The Changing Landscape of International Intellectual Property', 1 J Int'l Pty L & Practice (2006) 246;
22. Drahos, 'Intellectual Property Rights in the Knowledge Economy', in D. Rooney, G. Hearn, and A. Ninan (eds), Handbook on the Knowledge Economy (2005);
23. Helfer, 'Regime-Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking', 29 Yale J Int'l L (2004) 1;
24. P. Drahos and J. Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2003);
25. S.K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (2003);
26. C. Bellmann et al. (eds), Trading in Knowledge: Development Perspectives on TRIPs, Trade, and Sustainability (2003);
27. Maskus, supra note 10;
28. M. Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property (1998).
29. Dreyfuss and Lowenfeld, 'Two Achievements of the Uruguay Round: Putting TRIPs and Dispute Settlement Together', 37 Virginia J Int'l L (1997) 275.
30. See, e.g., UK Commission on Intellectual Property Rights, 'Final Report: Integrating Intellectual Property Rights and Development Policy' (2002), available at: www.iprcommission.org/graphic/documents/final_report.htm
31. Bellman et al., supra note 12.
32. See generally Boyle, 'The Second Enclosure Movement and the Construction of the Public Domain', 66 L & Contemporary Problems (2003) 33.
33. GIs, unlike trade marks, are not owned by individuals and cannot be licensed. See O'Connor, supra note 6, at 112-114.
34. As Rangnekar argues, '[f]rom an economic standpoint, GIs are seen as a form of collective monopoly right that erects entry barriers on producers either within or outside the relevant geographical area': Rangnekar, 'The Socio-Economics of Geographic Indications: A Review of Empirical Evidence from Europe', UNCTAD ICTSD Project on IPRs and Sustainable Development Issue Paper No. 8, May 2004, at 15.
35. Addor and Grazioli, 'Geographical Indications Beyond Wines and Spirits', 5 J World Int'l Pty (2002) 6.
36. For instance Australia, though a major wine producer, did not have any legislation dealing expressly with GIs until TRIPS: See Battaglene, 'The Australian Wine Industry Position on Geographic Indications', Worldwide Symposium on Geographical Indications, 27-29 June 2005, available at: www.wipo.org/meetings/2005/geo_pmf/en/presentations/doc/ wipo_geo_pmf_05_battaglene.doc.
37. International Trademark Association Bulletin, Special Report on Geographical Indications (New York, International Trademark Association, 1 Sept. 2003), at 1.
38. We know of no example of a transnational geographic indication, though as a conceptual matter one could plainly - and indeed ought to - exist, given that natural features do not correspond to political borders. Some GIs do not linguistically refer to a place; 'Basmati', for instance, is not a geographical name. Das, 'International Protection of India's Geographic Indications with Special Reference to "Darjeeling" Tea', 9 J World Int'l Pty (2006) at 460.
39. Joined Cases C-465/02 and C-466/02, Federal Republic of Germany and Kingdom of Denmark v. Commission of the European Communities, [2005] ECR I-09115. This ruling bars other EU producers from using the word 'feta' despite the fact that feta is not a place in Greece, or anywhere else for that matter.'Feta'is a Greek word roughly translatable as 'slice'. We thank the scholar of trade law and cheese Petros Mavroidis for this translation.
40. O'Connor, supra note 6, at 77.
41. TRIPS, supra note 1, art. 22(1).
42. 'About Geographic Indications', available at: www.wipo.int/about-ip/en/ about_geographical_ind.html (last visited 20 Nov. 2006). O'Connor argues that a GI 'is linked ... to something more than mere human creativity including topography, climate, or other factors independent from human creativity': O'Connor, supra note 6, at 113.
43. Dispute DS/174/R, EC-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (2005).
44. See Evans and Blakeney, supra note 7, at 595-604, for an analysis.
45. TRIPS, supra note 1, Art. 24. This provision aims to negotiate between the protection of existing trade marks and customary terms, on the one hand, and the protection of GIs on the other. In practice a significant number of erstwhile GI violations are harboured by this provision. Generic terms, such as Bermuda shorts, are likewise covered by Art. 24.
46. Das, supra note 19, at 477.
47. Percentages calculated are based on figures found in European Commission, 'Why Do Geographical Indications Matter to Us?', supra note 7.
48. WTO Talks: EU Steps up Bid for Better Protection of Regional Quality Products', Press Release IP/03/1178 of 28 Aug. 2003, available at: http://europe.eu.int/rapid/pressReleasesAction.do?reference=IP/03/1178 (last visited 20 Nov. 2006).
49. 'Why Do Geographical Indications Matter to Us?', supra note 7.
50. See also Das, supra note 19, at 466, promoting the wines and spirits standard for Indian GIs.
51. See generally O'Connor, supra note 6;
52. Torsen, 'Apples and Oranges (and Wine): Why the International Conversation Regarding Geographic Indications is at a Standstill', 87 J Patent and Trademark Office Society (2005) 31, at 34-35.
53. See Bronco Wine Co v. Jolly, 33 Cal. 4th 943 (2004).
54. Available at www.eu-authentic-tastes-com/system/overview.html (visited on 16 Dec. 2005).
55. ECJ press release on the Feta judgment; Press release No 92/05, 25 Oct. 2005.
56. Recall, however, that TRIPS Art. 24 has grandfathered in the (mis)use of certain GIs.
57. Gulmann AG in Case C-306/93, SMW Winzersekt GmbH v. Land Rhineland-Pfalz [1995] ECR I-5555.
58. The theory of terroir suggests that this result is impossible. For more on terroir in the GI context see Hughes, supra note 9.
59. A recent econometric study claims that the contribution of terroir to valuable wine is vastly overstated: See Styles, 'Terroir Plays No Role, "Parker effect" adds 15% to Bordeaux, Study Finds' (22 Mar. 2005), available at: www.decanter.com/news/62518.html.
60. Case C-108/01, Consorzio del Prosciutto di Parma & Salumificio S. Rita SpA v. Asda Stores Ltd & Hygrade Foods Ltd [2003] ECR I-05121, available at: http://curia.eu.int.
61. See also Evans and Blakeney, supra note 7, at 587-591.
62. An example of traditional knowledge is information relating to the medicinal uses of the neem tree, a local plant commonly used in South Asia to address various ailments. On the protection of traditional knowledge via intellectual property law generally see UK Commission Final Report, supra note 14, ch. 4;
63. Cottier and Panizzon, 'Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection', and Lange, 'Traditional Knowledge, Folklore, and the Case for Benign Neglect', both in Maskus and Reichman, supra note 7;
64. Bellmann et al., supra note 12.
65. UK Commission Final Report, supra note 14, ch. 4;
66. Rangnekar, supra note 16.
67. See, e.g., Gervais, supra note 12, at 250, referring to the GI debate in the WTO as a 'mostly North-North issue'. The GI debate also shares similarities with the debate over property rights in plant genetic resources, which is a largely North-South debate. Plant genetic resources fall somewhere between traditional knowledge and GIs in terms of protection under international law.
68. Unlike traditional knowledge, which is not mentioned in TRIPS, plant genetic resources receive a form of sui generis protection via Art. 27(3)(b) of TRIPS and are the subject of extensive attention in other international treaties, such as the 2001 FAO sponsored International Treaty on Plant Genetic Resources in Food and Agriculture (available at: www.fao.org/AG/cgrfa/itpgr.htm).
69. As in the GI and traditional knowledge cases, here a resource of long-standing, closely associated with and perhaps dependent upon a particular geographic locale, was increasingly seen as being 'pirated' by outsiders. The result was a successful campaign to protect property rights in plant genetic resources. On the struggle over rights in genetic resources see Munzer, 'Plants, Torts, and Intellectual Property', in T. Endicott et al., Properties of Law: Essays in Honor of Jim Harris (2006);
70. Raustiala and Victor, 'The Regime Complex for Plant Genetic Resources', 32 Int'l Org (2004) 147;
71. Helfer, 'Using Intellectual Property Rights to Preserve the Global Commons', in Maskus and Reichman, supra note 7.
72. B. Barber, Jihad vs. McWorld: How Globalism and Tribalism are Reshaping the World (1995).
73. Some claim that globalization reflects the idea that activities that were once carried out within nation states are now often carried out regionaly or globally - and are even, in that respect, 'deterritorialized'. See, e.g., Woods 'The Political Economy of Globalization', in N. Woods (ed.), The Political Economy of Globalization (2000), at 5.
74. See, e.g., Broude, supra note 5.
75. Baldwin and Martin, 'Two Waves of Globalization, Superficial Similarities, Fundamental Differences', NBER Working Paper no. 6904 (1999);
76. Garrett, 'The Causes of Globalization', 33 Comp Political Stud (2000) 941;
77. J. Frieden, Global Capitalism: Its Fall and Rise in the Twentieth Century (2006).
78. Anderson, 'Wine's New World', 136 Foreign Policy (2003) 49.
79. Press release, United States Trade Representative, 15 Sept. 2005, available at: www.useu.be/Categories/Trade/Sept1505_Wine_Accord.html.
80. Supp, 'In Vino Vilitas: European Wine Fighting for Survival', 44 Der Spiegel (online English edn) (2005), available at: http://service.spiegel.de/cache/international/spiegel/ 0,1518,druck-383331,00.html.
81. Anderson, Norman, and Wittwer, 'Globalisation of the World's Wine Markets', 26 World Econ (2003) 660-661.
82. Ibid., at 665.
83. 'Make It Cheaper, and Cheaper', 369 Economist (2003) 6.
84. See, e.g., Rangnekar, supra note 16, at 6: '[i]nterest in and the commercial potential of [GIs] is partly related to the recent growth of socially-constructed quality criterions i sic] such as fair trade, o rganic, and so forth';
85. Das, supra note 19, at 460: '[g]iven the recent trends in the world market, where consumers, especially those in the developed world, are increasingly finicky about the quality and authenticity of the products that they are buying and are gradually developing preferences for environmentally sound and/or socially responsible products, GIs are increasingly gaining in importance as weapons for such niche marketing.'
86. Lee and Rund, 'EU-Protected Geographic Indications: An Analysis of 603 Cases' (draft manuscript, American University, Dec. 2003), at 3.
87. These products often share qualities - hand-crafted, traditional, artisanal - that the pop-sociologist and New York Times columnist David Brooks argues are highly sought after by upper-income consumers in post-industrial societies: D. Brooks, Bobos in Paradise: The New Upper Class and How They Got There (2000), ch. 2.
88. See www.artisanalcheese.com (last visited 20 Nov. 2006).
89. See www.eu-authentic-tastes.com (last visited 20 Nov. 2006).
90. Normile and Price, 'The United States and the European Union: Statistical Overview', US Department of Agriculture, available at: www.ers.usda.gov/publications/WRS0404/WRS0404b.pdf (last visited 20 Nov. 2006).
91. The European Commission has argued that 'GIs are the lifeline for 138000 farms in France and 300000 Italian employees': European Commission, 'Why Do Geographical Indications Matter to Us?', supra note 7.
92. Lee and Rund, supra note 51.
93. Quoted in Babcock, 'Geographic Indications, Property Rights, and Value-Added Agriculture', 9 Iowa Agric Rev Online (2003) 4, available at: www.card.iastate.edu/iowa_ag_review/fall_03/article1.aspx (last visited 20 Nov. 2006).
94. See also European Commission, 'Why Geographical Indications Matter to Us?', supra note 7: '[g]eographical indications constitute the main pillar of the EU's quality policy on agricultural products ... [they] create a genuine niche for development of agri-food industries for relatively low development agricultural economies'.
95. Spencer, 'A Way Forward for Geographic Indications', document prepared for the World Symposium on Geographic Indications, WIPO, July 2003, WIPO/ Geo/SFO/03/25, at 1.
96. Ibid., at 3.
97. Dudas, Deputy Undersecretary of Commerce for Intellectual Property, quoted in Torsen, 'Apples and Oranges (and Wine): Why the International Conversation regarding Geographic Indications is at a Standstill', 81 J of the Patent and Trademark Soc (2005) 31, at 52.
98. Letter from Australian Minister for Trade Mark Vaile to USTR Robert Zoellick, 18 May 2004, available at: http://ustr.gov/assets/ Trade_Agreements/Bilateral/Australia_FTA/Final_Text/ asset_upload_file778_3889.pdf.
99. Indeed, Mexico sought and received explicit protection for Tequila and Mescal in NAFTA: See NAFTA Annex 313 (Distinctive Products), North American Free Trade Agreement, 32 ILM (1993) 605.
100. On Darjeeling see Das, supra note 19;
101. Srivastava, 'Protecting the Geographic Indication for Darjeeling Tea', Managing the Challenges of WTO Participation Case Study 16, available at: www.wto.org/english/res_e/booksp_e/casestudies_e/case16_e.htm (last visited 20 Nov. 2006).
102. O'Connor, supra note 6, at 392.
103. Here again the parallels with the efforts to protect traditional knowledge and plant genetic resources via new international rules are noteworthy.
104. 'Why Do Geographic Indications Matter to Us?', supra note 7.
105. See G. Libecap, Contracting for Property Rights (1989);
106. Merrill, 'The Demsetz Thesis and the Evolution of Property Rights', 31 J Legal Stud (2002) 331;
107. Riker and Sened, 'A Political Theory of the Origin of Property Rights', 35 Am J Political Science (1991) 951;
108. Rose, 'Economic Claims and the Challenges of New Property', in K. Verdery and C. Humphery (eds), Property in Question: Value Transformation in the Global Economy (2004), at 227-295. Many of these analyses draw on the famous theory of property rights developed by Harold Demsetz.
109. Landes and Posner, supra note 10.
110. We recognize that some query whether intellectual property rights ought to be understood as a species of property generally. See, e.g., Lemley, 'Property, Intellectual Property, and Free Riding', 83 Texas L Rev (2005) 1031. While mildly sympathetic to this argument, in the interest of fairness and completeness we examine the broadest possible suite of justifications.
111. See, e.g., L. Becker, Property Rights: Philosophic Foundations (1977), at 48-56;
112. Becker, 'Deserving to Own Intellectual Property', 68 U Chicago-Kent L Rev (1993) 609. As Becker and others recognize, Locke's famous discussion of property offers only thin support for a labour-desert principle.
113. See, generally, J. Locke, Second Treatise of Government (1690), paras 25-51, in P. Laslett (ed.), Two Treatises of Government (1967), at 303-320. Such a principle is related, though, to Locke's argument that because no one would labour without expecting some benefit, it would be unfair to let the idle take 'the benefit of another's Pains' (para. 34).
114. See, e.g., S.R. Munzer, A Theory of Property (1990), at 276-279, 395-396.
115. See, e.g., J.S. Mill, Principles of Political Economy (1848) (ed. W. Ashley, 1976), at 226-227, who wanted to limit inheritance.
116. See Munzer, supra note 70, at 276-278, 380-418.
117. Ibid., at 217-218, 286-287, 397-402.
118. See, e.g., Merrill and Smith, 'Optimal Standardization in the Law of Property: The Numerus Clausus Principle', 110 Yale LJ (2000) 1.
119. Becker, Property Rights, supra note 69, at 24-56.
120. Ibid., at 23.
121. See, e.g., Child, 'The Moral Foundations of Intangible Property', 73 Monist (1990) 578;
122. R. Nozick, Anarchy, State, and Utopia (1974), at 181-182.
123. Labour dominates Locke's own discussion of property, but his examples of picking up acorns and gathering apples, which involve precious little labour, suggest that something hinges on firstness: '[a]nd 'tis plain, if the first gathering made them not his, nothing else could': Locke, Second Treatise of Government, supra note 69, para. 28.
124. In the present era, Epstein, 'Possession as the Root of Title', 13 Georgia L Rev (1979) 1221, at 1238-1243, offers a qualified defence of first possession.
125. J. Waldron, The Right to Private Property (1988), at 173, 176, 284-287, 386-389, has a shrewd treatment of first occupancy in Locke and other thinkers.
126. Shiffrin, 'Lockean Arguments for Private Intellectual Property', in S.R. Munzer (ed.), New Essays in the Legal and Political Theory of Property (2001), at 138-167.
127. See ibid., at 158-166.
128. As this example suggests, strong GI protection in relatively open economies could stimulate foreign direct or portfolio investment, which could, ironically, crowd out traditional producers. We thank Christina Davis for this point.
129. These arguments reflect the concept of desert as well.
130. Supra note 20.
131. Lemley, supra note 68, at 1057.
132. See also Landes and Posner, supra note 10.
133. There are collective trademarks that have similar qualities-and problems.
134. Consumer confusion, while still the core rationale, is decreasingly important in American case law: See Lemley, 'The Modern Lanham Act and the Death of Common Sense', 108 Yale LJ (1999) 1687.
135. TRIPS Agreement, supra note 1, Art. 22(2)(a).
136. Ibid., Art. 23(1) (emphasis added).
137. Rangnekar, supra note 16, at 15.
138. 'Why Do Geographical Indications Matter to Us?', supra note 7.
139. Proponents of GIs might argue that discrimination is significant in another sense: There ought to be global equity in the distribution of GIs among various nations. Any such argument could hardly be an independent justification for GIs, however. Instead, it must be, in Nozick's familiar language, a 'moral side constraint' on the distribution of GIs, which would already have to be justified by some other argument, across nation states: R. Nozick, Anarchy, State, and Utopia (1974), at 28-35.
140. One could satisfy such a side constraint in several ways: Decrease the number or value of GIs held by nations that have a large and valuable portfolio of GIs, or increase the number or value of GIs held by nations that have few or only slightly valuable GIs, or both. The first way weakens further the justification for GIs in most European states and perhaps even in the US and Australia. The second way raises a pair of distinct problems. One is identifying which nations ought to have more GIs than they currently do. The other is making sure that the GIs are valuable. Of late philosophers have written a great deal about international justice but virtually nothing about GIs. See, e.g., J. Rawls, The Law of Peoples (1999);
141. Nagel, 'The Problem of Global Justice', 33 Philosophy & Public Affairs (2005) 113;
142. Julius, 'Nagel's Atlas', 34 Philosophy & Public Affairs (2006) 176.
143. The most useful work on global equity in regard to GIs comes from scholars who are familiar with GIs and the traditional knowledge of indigenous peoples. Some are purely strategic arguments for increasing GIs in developing countries so that members of the EU will have allies in WTO negotiations: Kerr, 'Enjoying a Good Port with a Clear Conscience: Geographic Indicators, Rent Seeking and Development', 7 Estey Centre J Int'l L and Trade Policy (2006) 1.
144. Rather more helpful are proposals for recognizing GIs in African countries such as Kenya: Grant, 'Geographical Indications: Implications for Africa', Tralac Trade Brief no. 6/2005, available at: www.tralac.com. The work of Dwijen Rangnekar also stands out.
145. See Rangnekar, 'The International Protection of Geographical Indications: The Asian Experience', UNCTAD/ICTSD Regional Dialogue on 'Intellectual Property Rights (IPRs), Innovation and Sustainable Development', 8-10 Nov. 2004 (Hong Kong, SAR, People's Republic of China).
146. He is sensitive to the interplay between GIs in developing countries and the protection of 'indigenous knowledge' in those countries: Rangnekar, supra note 16. We must leave 'traditional'or 'indigenous' knowledge for another article, but Rangnekar's studies do not avoid the pitfalls we have identified earlier in putative independent justifications for GIs. To the extent that GIs have limited justifications, a global justice side constraint is defensible but is not itself an independent justification. Moreover, increasing the number of GIs in countries that have few GI-denominated goods does little to solve the practical problem of making the GI names economically valuable.
147. On competition law and its connection to intellectual property see Fox, 'Can Antitrust Policy Protect the Global Commons from the Excesses of IPRs?', in Maskus and Reichman, supra 7.
148. Heller and Eisenberg, 'Can Patents Deter Innovation? The Anticommons in Biomedical Research', 280 Science (1998) 698.
149. For an elaboration of these costs in the context of IP rights generally see the excellent discussion in Lemley, supra note 68, at 1058-1065;
150. Landes and Posner, supra note 10.
151. The costs can be so high that some question whether intellectual property rights are needed at all: Boldrin and Levine, 'The Case Against Intellectual Property', 92 Am Econ Rev (2002) 209.