Vol ## THE PROBLEM OF UNIFORMITY COST V CONCLUSION 62 . INTRODUCTION The law grants patents to inventors and copyrights to authors to encourage investments in technological and cultural innovation. While addressing an appropriability problem faced by innovators, these intellectual property rights create a different problem by supplying rightsholders with powerful weapons against end-users, direct competitors and follow-on innovators who seek to bring socially beneficial innovations to market. To promote progress, intellectual property law must strike a stifling the efforts of follow-on innovators or the liberties of end-users y balance, providing sufficient incentives for innovation without undi In the law, balance usually calls for context-sensitivity. However intellectual property law protects the owner of each patented invention c copyrighted work of authorship with a largely uniform set of exclusive rights. Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions obtaining with respect to protected subject matter, such as books or mechanical inventions Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that There are exceptions and qualifications to the claim that patent and copyright owners enjoy uniform rights, respectively. Nonetheless, as the discussion in Section Ill infra demonstrates, in the main the law does not differentiate the scope or duration of rights granted on the basis of subject matter, level of investment, or any other metric. For purposes of this Article, discussion of"intellectual property"is limited to patent and copyright law. Trademark, trade secret, rights of publicity and other rights in information present related but different features that require separate analysis beyond the scope of this article See, e.g., Dan L. Burk Mark A. Lemley, Is Patent Law Technology Specific,, 17 BERKELEY TECH. LJ. 1155, 1159(2002)[hereinafter Burk Lemley, Technology- Specific?("The useful arts envisioned by the Framers were mechanical inventions useful in a primarily agrarian economy. ) Copyright regulated the publishing business See The Copyright Act of 1790 extended protection only to "maps, charts, and books Copyright Act of 1790, I Stat. 124; see also infra notes XX and accompanying text (charting expansion of copyrightable subject matter) e,e.g. Dan L. Burk Mark A Lemley, Policy Levers in Patent Law, 89 VAL REV 1575, 1581(2003)[hereinafter Burk Lemley, Policy Levers]("[T]he cost of R&D varies widely from industry to industry and from innovation to innovation. "Vol. ##] THE PROBLEM OF UNIFORMITY COST 2 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 I. INTRODUCTION The law grants patents to inventors and copyrights to authors to encourage investments in technological and cultural innovation. While addressing an appropriability problem faced by innovators, these intellectual property rights create a different problem by supplying rightsholders with powerful weapons against end-users, direct competitors and follow-on innovators who seek to bring socially beneficial innovations to market. To promote progress, intellectual property law must strike a balance, providing sufficient incentives for innovation without unduly stifling the efforts of follow-on innovators or the liberties of end-users. In the law, balance usually calls for context-sensitivity. However, intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights.1 Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions obtaining with respect to protected subject matter, such as books or mechanical inventions. Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively.2 In the modern context, it is clear that innovators’ needs for intellectual property protection vary substantially across industries and among types of innovation.3 Applying a socially costly, uniform solution to problems of differing magnitudes means that 1 There are exceptions and qualifications to the claim that patent and copyright owners enjoy uniform rights, respectively. Nonetheless, as the discussion in Section III infra demonstrates, in the main the law does not differentiate the scope or duration of rights granted on the basis of subject matter, level of investment, or any other metric. For purposes of this Article, discussion of “intellectual property” is limited to patent and copyright law. Trademark, trade secret, rights of publicity and other rights in information present related but different features that require separate analysis beyond the scope of this Article. 2 See, e.g., Dan L. Burk & Mark A. Lemley, Is Patent Law Technology Specific?, 17 BERKELEY TECH. L.J. 1155, 1159 (2002) [hereinafter Burk & Lemley, Technology￾Specific?] (AThe >useful arts= envisioned by the Framers were mechanical inventions useful in a primarily agrarian economy.@). Copyright regulated the publishing business. See The Copyright Act of 1790 extended protection only to Amaps, charts, and books@ Copyright Act of 1790, 1 Stat. 124; see also infra notes XX and accompanying text (charting expansion of copyrightable subject matter). 3 See, e.g. Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1575, 1581 (2003) [hereinafter Burk & Lemley, Policy Levers] (A[T]he cost of R&D varies widely from industry to industry and from innovation to innovation.@)