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With their “tragedy of the commons” paradigm for intellectual property, Landes and Posner argue that the most important benefit of intellectual property rights is not that they generate incentives to create new works, but that they ensure the efficient exploitation of existing intellectual works. This alternative economic case for IP notably relies on the argument that allowing the copyright on certain massively popular works to expire could lead to their overexploitation, generating negative externalities similar to congestion externalities. This article will assess in detail the plausibility of this effect, by reviewing its most plausible interpretations: a boredom effect, a “blurring” or “tarnishment” effect, a snob effect, or a decrease in product diversity. I will argue that while Landes and Posner’s argument is ultimately inconclusive and unverified by the current state of empirical research, it also raises greater challenges than has usually been thought. Moreover, taking their argument seriously can also contribute to a better understanding of the purposes and limits of an intellectual property regime.
