MINISTERO DELL'ISTRUZIONE, DELL'UNIVERSITĄ E DELLA RICERCA
DIPARTIMENTO PER LA PROGRAMMAZIONE IL COORDINAMENTO E GLI AFFARI ECONOMICI - SAUS
PROGRAMMI DI RICERCA SCIENTIFICA DI RILEVANTE INTERESSE NAZIO
RICHIESTA DI COFINANZIAMENTO
(DM n. 20 del 19 febbraio 2002)
PROGETTO DI UNA UNITĄ DI RICERCA - MODELLO B
Anno 2002 - prot. 2002137581_005
1.1 Programma di Ricerca di tipo:
Area Scientifico Disciplinare:
Scienze economiche e statistiche (60%)
Area Scientifico Disciplinare:
Scienze giuridiche (40%)
1.4 Responsabile Scientifico dell'Unitą di Ricerca
||(data di nascita)
||(codice di identificazione personale)
|Universitą degli Studi di TRENTO
||Facoltą di ECONOMIA
||Dipartimento di SCIENZE GIURIDICHE
2.1 Titolo specifico del programma svolto dall'Unitą di Ricerca
THE GOVERNANCE OF KNOWLEDGE BETWEEN PROPERTY AND CONTRACT
2.2 Settori scientifico-disciplinari interessati dal Programma di Ricerca
- IUS/01 - DIRITTO PRIVATO
- IUS/02 - DIRITTO PRIVATO COMPARATO
- SECS-P/01 - ECONOMIA POLITICA
2.3 Parole chiave
; CONTRACTUAL INCOMPLETENESS
; INTELLECTUAL PROPERTY
2.4 Base di partenza scientifica nazionale o internazionale
The expression 'knowledge economy' is commonly
used by economic scholars to comprehend the current changes within the industrialized
countries. The main aspects of these changes arise from the evolution of
the mechanisms of knowledge production, distribution and use. The emphasis
put by the most recent analyses on these aspects may seem exaggerated, especially
if it is considered that at any historical time the economic systems have
faced the innovation and distribution problem with respect to information.
Within the past centuries many technological revolutions can be seen as a
continuous search for new and more reliable communication systems (CHANDLER
e al. 2000). However, it is well known that, within the last decade, the
use of information technology has determined a fundamental change in the
behavior of firms, consumers and institutions. The direction and the extent
of this change are still hard to understand. Two elements appear of particular
interest to the research. First, the number of production processes and final
products that require an intensive use of knowledge tends to increase. Second,
a huge number of organisations and individuals are involved in innovative
activities (DAVID e FORAY 2002).
Both the aforementioned aspects have
many implications for the economic system and the institutions. The reversed
relation between fixed capital and intangible resources deeply changes the
internal structure of the firm as well as its external relations. The boundaries
of the firm are no more influenced by the control power over the equipment
and machinery. Indeed, they are largely dependent on the incentive structure
that strenghtens the ties between the firm and the holders of pivotal knowledge
(RAJAN e ZINGALES 2000). Moreover, today a big innovation attitude is a prerequisite
in order to get control over relevant market shares. In a recent past this
attitude was linked with vertical integration. By contrast, the technological
changes have favoured a trend towards complex relations among groups and
institutions, due to promote a continuous process of information production
and exchange. Outsourcing, firm networks, strategic alliances and co-operations
agreements between private and public institutions are among the most apparent
signs of a search for new organizational assets. Although the de-verticalization
process is not solely due to technological factors (LANGLOIS 2001), it is
clear that knowledge management is the most relevant problem within a redefinition
of the relations among and within the firms.
The interest of economic scholars for the causal explanation of the link
between technology and organization tends to obscure the influence of the
institutional context. Although the policies enacted in favor of innovation
are continuously considered within the continental debate, at regional and
national level, it is hard to get relevant results about the relation between
the institutional choices in each field and the outcomes obtained (MALERBA
2002; CORIAT, WEINMAN 2002). The number of factors which affect on the information
production and distribution is certainly one of the reasons against an appropriate
definition of the incentives given by the legal rules. A further obstacle
is the contextual presence of different regulation systems, often based on
incompatible logics. Intellectual property law, labour law, corporate law,
contract law, competition law contribute to define the institutional framework
in which the innovation producing activities are performed. The economic
and legal scholars do not seem to have theorethical tools to define hyerarchical
or coordination criteria for conflicts between different groups of norms.
For example, it is still debated whether the incentives to innovation, arising
from the enlargement of intellectual property rights, should be protected
through the reduction of antitrust control or, on the contrary, the more
significant problems with respect to antitrust situations require a stricter
intervention (ULLRICH 2001). The same issue arises in the approach followed
by the American antitrust authorities with regard to the joint ventures set
up in the research field.
The lack of adeguate analysis about the relationship among technology, organisations
and institutions is not solely due to the difficulty in empirical researches.
In fact, especially in studies about intellectual property, a deep contrast
emerges about the aims that should be pursued by the regulation of the forms
of knowledge. At a first level two approaches can be drawn: on the one hand,
the position emerging before the information technology revolution, as adopted
by the neo-classical scholars and reviewed within either the neo-institutional
and part of the law and economics approach; on the other hand, the economic
and legal literature, which proposes an alternative view of knowledge production
The two approaches represent the poles of a debate which crosses the different
sectors of the information society. The research project intends to analyse
the institutional effects of the comparison between appropriability and distribution
of knowledge within the relations among firms. The main lines of the research
are drawn below.
2.5 Descrizione del programma e dei compiti dell'Unitą di Ricerca
The two, above mentioned, theories about the mechanisms
of knowledge production and distribution provide different inputs with regard
to the institutional choices for promoting innovation.
The former approach,
which can be defined as traditional, does not distinguish between information
and knowledge, but recognizes in both the features of public goods: high
exclusion costs and non rivalry in use. Starting from this, a clear policy
option arises: the only way of creating adequate incentives for innovation
and creating a technology market is the introduction of rights which guarantee
an high level of appropriability of profits obtained from inventions. The
reference model is represented by the market of tangible assets. The creation
of exclusive property rights is considered one of the conditions upon which
the market is based. A similar pattern is therefore suggested for the non-tangible
assets market (TEECE 2000).
The neoinstitutional approach is based upon the same premise with regards
to the the new co-operation forms among forms. The sharing of knowledge can
lead to opportunistic behaviours consisting in appropriating others' inventions.
This danger especially arises if a strong protection of property rights is
lacking. Therefore, governance would tend to hierarchy when the institutional
context and technological tools do not allow to appropriate a profit share
proportional to the investment in innovation. A contractual approach could
be preferred as the law presents adequate guarantees against opportunism
(OXLEY 1999, ARORA e MERGES 2001, SAMPSON 2001).
An alternative view is proposed by the authors who put an emphasis on the
difference between information and knowledge. Only the former would present
the features of a public good because resulting in instructions which are
easily conveyed. By contrast, knowledge is strictly used with regards to
cognitive capacities which are not directly reducible in keys, but are pivotal
in order to elaborate information already codified (COWAN e al. 2000, STEINMUELLER
2002). The production, elaboration and conveyance of this know-how requires
a complex network. The different co-operation forms among firms could be
considered a first aid to govern this kind of knowledge. If the traditional
approach assumes that innovation can be appropriated by the single firm,
the alternative approach underlines the importance of sharing ability and
complementarity of knowledge, as a pivotal aspect of the cognitive enhancing
process of a firm. In other words the knowledge is not just an output but
also an input. Moreover, it cannot be produced in isolation, but requires
the access to a network which allowed to share complementary knowledge (DAVID
e FORAY 1996, ANTONELLI 2001).
The traditional approach views property rights in information as the only
way to ensure adequate incentives for the production of new knowledge. The
alternative approach favors institutional structures and communication channels
which allow knowledge-sharing. From this point of view, strong property rights
could be counterproductive. Moreover, the complementarity between innovation
and istitutional structure should not be forgotten (PAGANO 1999, PAGANO e
ROSSI 2002). The existing allocation of property rights over intellectual
assets may exert an enduring influence on the direction of technological
development. Because of the pervasive, yet easily overlooked, influence exercised
by the institutional environment the innovation process could lead to the
adoption of an inferior technology.
The hypothesis from which this project moves is that the governance of knowledge
might be situated in the middle ground between property and free access.
Actually, investment in innovation should not be always considered dependent
by the granting of property rights. Commodification might reduce innovation
due to the lack of complementary information. As regards institutional choices,
the key issue is finding an equilibrium between private benefits for inventors
and social benefits deriving from knowledge and its allocation.
This research will focus on both the two models of knowledge governance, that is property and contract.
On the basis of these premises, the research aims to analyse the forms of
co-operation among firms. The model which more stimulate the attention is
that of networks. In this context, it is possible to compare the neo-institutional
approach, which insists on opportunism as a cost of contract relationships,
and the approach which considers the network as the way for knowledge production
without increasing transaction costs (HELPER et al. 2000, BARNETT 2000, POWELL
et al. 1999). It seems to be a clear contrast between the same existence
of contractual relationships in contexts characterised by big uncertainty
and asset-specificity and the upshots of neo-institutional theory. Also relevant
is the consideration of the value in terms of reduction of transaction costs
which derive from the creation of networks with the participation of public
scientific institutions and non-profit institutions (DAVID et al. 1999, CASSIER
Attention must be reserved to the rules that might incentive or reduce innovation
in districts (RULLANI 2001). Some suggestions are given by article 7, Law
192/1998 on outsourcing in general, which assigns to the contractee the property
of the project, even if this rule doesn't solve the question of the allocation
of rights in the invention made during the relation through the efforts of
More generally, the existence of outsourcing contractual relationships reveals
the intention to create communication channels that maximise the incentives
to invest in innovation (INNOCENTI 2001). Further famous examples of district
economics are Silicon Valley and Route 128, which seem to confirm that the
major source of success in networking is the circulation of knowledge and
not the strong protection of intellectual property rights.
The relation between property and contract might be studied also in the perspective
of an eventual change of roles. The tradition is in the sense that intellectual
property rights are granted to the end of regulating the relation between
authors and third persons not involved in the creation process. The increase
of co-operation in knowledge production suggests now to consider the regulation
of the relation between co-operators as one of the major objectives of intellectual
property (COOPER DREYFUSS 2000a). Property model of governance seems to be
closer to the contract one. In the mean time, contract appears directed to
move in the opposite direction, by extending intellectual property protection
beyond the constraints given by copyright.
The Uniform Computer Information Transaction Act, approved in July 1999 by
the National Conference of Commissioners for Uniform State Laws and opened
to signature by the states, offers a complete regulation of software utilisation.
This Act is clearly directed to make the protection of property rights stronger.
In other words, contract should reduce the costs of exclusion more efficiently
than intellectual property. Yet, this argument risks to decrease the possibility
of access to knowledge that is necessary for producing further information
(COOPER DREYFUSS 2000b; ELKIN-KOREN 2001).
The use of contract to realise a property-like exclusivity imposes to reflect
on knowledge production and distribution mechanisms. In traditional markets,
protection of property may sometime be performed through contractual forms.
The owner may use for restitution actiones in personam easier than actionem
in rem. Yet, , the UCITA provides the owner with the faculty to oppose to
third buyers the restrains agreed upon with the first user. The systematic
consequences of this solution are not completely clear. As regards material
goods, it is maintained that the multiplication of entitlements erga omnes
risks to increase information costs (MERRIL-SMITH 2001). The same might be
said with regard to intangible goods.
In the European system what emerges is a different balance of interests.
The Directive 2001/29/CE and the proposal Directive of 20/2/2002 show the
intention to increase the protection of authors and inventors but without
reducing open access to idea and information.
Such conflict between innovation and open-access may be found in the debate
about network externalities in the new economy (see, in general, SHAPIRO
& VARIAN 1999). Property rights in standard may constitute a barrier
to entry for new actors where the majority of users decided to use that standard.
Monopoly costs should however be compared with social benefits from the standard
itself. To prohibit to the owner the right to benefit from network externalities
risks to decrease incentives to invest in new technologies production.
But this argument is object of big debate. Someone invokes antitrust law
and the doctrine of essential facilities for obliging the owner to give the
others the right to use the standard (see PARDOLESI & RENDA 2000, OPI
A similar issue is presented in the sector of telecommunication networks,
where the doctrinal trend is in the sense to oblige the dominant operators
to open the networks to competitors (NOAM 2001, CAVE - PROSPERETTI 2001,
Both for intellectual property and for telecommunications networks it becomes
of crucial relevance the individuation of intermediary forms of access to
knowledge, which guarantee simultaneously both incentives in innovation and
access to information useful for the production of complementary information.