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The author reflects on the relationship between intellectual property rights and competition law. The emergence of a new prospective among economists on this relationship is stressed, suggesting that a dynamic view of the role of IPRs in promoting economic welfare gains generally leads to the conclusion that IP protection is compatible with economic principles favoring competitive markets. The current attitude of competition law authorities toward IPRs in Canada, the European Union, Japan and the USA is described. This attitude reflects a shift away from a more critical approach to IPRs followed by competition authorities in the 1970s. It is postulated that these authorities have accepted a new dynamic view of the economic role of IPRs. The rules of the WTO TRIPS Agreement which address anti-competitive practices are also described. The circumstances in which IPRs may nevertheless facilitate economic outcomes adverse to public welfare are considered. There are certain market segments (e.g., the network environment) in which risks of abuse may be greater than in others. Also, there are risks that overprotection may lead to suboptimal economic outcomes. The exhaustion of rights/parallel imports question is touched on briefly, suggesting that it may not be practicable to extend the EU role of exhaustion to the multilateral arena, but also suggesting that regional rules of exhaustion may be useful.
The fast-evolving relationship between the promotion of welfare-enhancing competition and the balanced protection of intellectual property (IP) rights has attracted the attention of policymakers, analysts and scholars. This interest is inevitable in an environment that lays ever greater emphasis on the management of knowledge and innovation and on mechanisms to ensure that the public derives the expected social and economic benefits from this innovation and the spread of knowledge. This book looks at the positive linkage between IP and competition in jurisdictions around the world, surveying developments and policy issues from an international and comparative perspective. It includes analysis of key doctrinal and policy issues by leading academics and practitioners from around the globe and a cutting-edge survey of related developments across both developed and developing economies. It also situates current policy developments at the national level in the context of multilateral developments, at WIPO, WTO and elsewhere.
The purpose of this book is to examine the experience of a number of countries in grappling with the problems of reconciling the two fields of competition policy and intellectual property rights. The first part of the book indicates the variation in legislative models as well as the wide variety of judicial and administrative doctrines that have been used. The jurisdictions selected for study are the three major trading blocks with the longest experience of case law (the EU, the USA and Japan) and three less populous countries with open economies (Australia, Ireland and Singapore). In the second part of the book we look at a number of issues closely related to the interface between competition law and intellectual property rights. Separate chapters analyse the issue of parallel trading and exhaustion of IPRs, the issue of technology transfer, and the economics of the interface between intellectual property and competition law.
The book deals with a difficult subject with an assured touch and will be a valuable text for postgraduate students, policy-makers and practitioners. European Intellectual Property Review This is the first ever book that addresses the important issue of the competition law, intellectual property and trade interface in a developing world context. The book s unique contribution is a set of comparative case studies on this complex interface. D. Daniel Sokol, University of Florida Levin College of Law, US The book investigates competition law and international technology transfer in the light of the TRIPS Agreement and the experience of both developed and developing countries. On that basis, it draws relevant implications for developing countries. Tu Thanh Nguyen argues that technology transfer-related competition law should be glocalized appropriately for the needs of local contexts, while intellectual property rights (IPR) are globalized. The book reveals that developing countries, according to the TRIPS Agreement, have the right to use domestic competition law to promote access to technology in order to protect national interests and consumer welfare. However, competition law is antitrust. It is neither anti-IPR nor anti-trade. The author finds that developing countries with limited competition law resources should set realistic priorities for the control of technology transfer-related anti-competitive practices. They can reasonably apply and adapt relevant regulations, decisions and judgments from developed country jurisdictions to their own circumstances. Competition Law, Technology Transfer and the TRIPs Agreement is a timely resource for postgraduate students, practitioners, and scholars in international competition law, IPR, and technology transfer. Policymakers in the field of technology transfer-related competition law/policy, especially in developing countries, will also find this book invaluable.
Intellectual Property law (IP) - particularly in relation to international trade regimes - is increasingly finding itself challenged by rapid developments in the technological and global economic landscapes. In its attempt to maintain a responsive legislative system that is interacting successfully with global trade rules, IP is having to respond to an increasing number of actors on an international level. This book examines the problems associated with this undertaking as well as suggesting possible revisions to the TRIPS agreement that would make it more relevant to the environment in which today's IP mechanisms are operating. The overall aim is to find an adequate response to the 'IP balance dilemma'. The theme is pursued throughout various topics, including a look at what this means in relation to economy in a country like China, and also considering how IP is increasingly having to reconcile itself with human rights issues.
This book gathers national and international reports from around the globe on key issues in the field of antitrust and intellectual property. Its first part discusses to what extent competition law should be concerned with differences in prices, terms and conditions, or quality that suppliers offer different purchasers. A detailed international report explores the major trends and challenges in this field and provides an excellent comparative study on this complex and challenging subject. In turn, the second part examines whether there should be legal restrictions on the ability of persons who claim, without sufficient justification, to hold IP rights that have been infringed on, to bring, or to threaten to bring, legal proceedings based on such claims against their competitors or others. In this regard, the book brings together the current legal responses across a number of European countries and elsewhere in the world, all summarised and elaborated on in an international report. The book also includes the resolutions passed by the General Assembly of the International League of Competition Law (LIDC) following debates on each of these topics, which include proposed solutions and recommendations. The LIDC is a long-standing international association that focuses on the interface between competition law and intellectual property law, including unfair competition issues.
In light of current negotiations concerning NAFTA and GATT, the question of intellectual property and its impact on international trade has taken on renewed urgency. The recognition and enforcement of intellectual property rights in national jurisdictions can serve to encourage international trade and economic growth or can create barriers to free and open commercial exchange. In this timely volume, Canadian, American, and Mexican scholars examine these landmark agreements and reassess the effects of intellectual property rights on international trade. Focusing on trade and intellectual property policies and practices between and within North America and Europe, they address several key issues, including "gray marketing" in North American and European trading blocs, U.S. trade policy concerning enforcement of intellectual property rights, and dramatic changes in Mexican law regarding intellectual property. The volume is essential for scholars working in intellectual property rights, international trade, and the global economy. Policymakers and anyone wishing to stay current with world trade negotiations will also find this book useful.
The rising importance and continuous expansion of intellectual property protection quite naturally goes together with increasing concern about the legal and political foundations of such enhanced protection. Nowhere does the basic equation which underlies intellectual property, namely that the pursuit of short term private interest by the holders of such property will satisfy the public interest in the long term, become both more visible, but also questionable than at the crossroads between the grant and enforcement of exclusive rights with international trade. Catchphrases, such as patent protection and access to essential medicines, or access to genetic resources, benefit sharing and economic development, stand for fundamental tensions and conflicts between private property and the public interest. This book presents the contributions that have been made on these and related topics by a group of internationally renowned experts at a workshop held at the College of Europe, Bruges.
The main objective of the contributions to this book is to bring together two seemingly different strands of thought: the competition-law analysis of the exercise of intellectual property, and the discussion about the proper limits of protection, which at present takes place inside the intellectual property community. Both are burdened with their own problems, particularly so in Europe, where market integration and the divide between exclusionary and exploitative abuses ask for a more dimensional approach, and where the shaping of intellectual property protection is under not only the influence of many interests and policies, but a multi-level exercise of the Community and its member states. The question is whether, nevertheless, there is a common concern, or whether the frequently asserted convergence of the operation and of the goals of competition law and intellectual property law does not mask a fundamental difference - namely that of, on the one hand, protecting freedom of competition against welfare-reducing restrictions of competition only, and, on the other, limiting the protection of exclusive rights in the (public) interest of maintaining free access to general knowledge. The purpose of the workshop held in 2007 at the College of Europe, Bruges, and whose results are published here, was to ask which role market power plays in either context, which role it may legitimately play, and which role it ought not to play. A tentative answer might be found in the general principle that, just as intellectual property does not enjoy a particular status under competition law, so competition law may not come as a white knight to rescue intellectual property protection from itself. However, the meaning of that principle differs according to both the context of the acquisition and the exploitation of intellectual property, and it differs from one area of intellectual property to the other. Therefore, an attempt has also been made to cover more facets of the prism-like complex of problems than is generally done.