The peculiar case of property rights in legal clauses

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Dennis W K Khong


Despite the tremendous value in well-written legal clauses, legal clauses enjoy little property rights protection under intellectual property law such as copyright. For example, in most jurisdictions, legislation is excluded from copyright protection. And even if they are technically covered under crown copyright as in the United Kingdom, licensing requirements may be waived and there is no legal repercussion for reusing partly or wholly such legal documents. Even in drafting legal agreements, lawyers tend to reuse clauses from templates and precedents. Commonly, sharing of such legal clauses is the norm rather than the exception. This article examines the relevant copyright law in the United Kingdom, the United States and Malaysia on this subject matter. It then looks at the economic justification for the lack of property rights recognition in legal clauses, such as efficiency and public goods argument. High transaction costs may partially account for the absence of property rights, but other economic considerations such as network effect may also be at play.

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Khong, D. W. K. (2022). The peculiar case of property rights in legal clauses. Issues and Perspectives in Business and Social Sciences, 2(1), 10–19 .
Research papers


Arrow, K. J. (1962). Economic welfare and allocation of resources for inventions. In C. on E. G. of the S. S. R. C. Universities-National Bureau Committee for Economic Research (Ed.), The rate and direction of inventive activity: Economic and social factors (pp. 609–626). Princeton University Press.

Dalmazzone, S. (1999). Economics of language: A network externalities approach. In A. Breton (Ed.), Exploring the economics of language (pp. 63–87). Ottawa: Department of Public Works and Government Services Canada.

David, P. A. (1985). Clio and the Economics of QWERTY. American Economic Review, 75(2), 332–337.

Farrell, J. (1989). Standardization and Intellectual Property. Jurimetrics, 30(1), 35–50.

Fedtke, J. (2006). Legal transplants. In Elgar Encyclopedia of Comparative Law (pp. 434–437). Edward Elgar.

Gordon, W. J. (1982). Fair use as market failure: A structural and economic analysis of the Betamax case and its predecessors. Columbia Law Review, 82, 1600–1657.

Gordon, W. J. (2002). Excuse and justification in the law of fair use: Transaction costs have always been part of the story. Journal of Copyright Society of the USA, 50, 149–198.

Khong, D. W. K. (2019). Intellectual property: Economic justification. In A. Marciano & G. B. Ramello (Eds.), Encyclopedia of Law and Economics (pp. 1178–1185). Springer New York.

Khong, D. W. K. (2021). Copyright exceptions for the digital age: A comparative study in Malaysia and the Philippines. In R. Casis & A. Buban (Eds.), Asian Comparative Law, Volume 1 (pp. 100–114). University of the Philippines Law Center.

Liebowitz, S. J., & Margolis, S. E. (1990). The fable of the keys. Journal of Law and Economics, 33(1), 1–25.

McNutt, P. (1999). Public goods and club goods. Encyclopedia of Law and Economics, 1, 927–951.

Samuelson, P. (2016). Reconceptualizing copyright’s merger doctrine. Journal of the Copyright Society of the USA, 63(3), 416–470.

Sobota, A. (2014). The plain language movement and modern legal drafting. Comparative Legilinguistics, 20(2), 19–30.

The National Archives. (2016). UK government licensing framework for public sector information.