Expansionist Intellectual Property Protection and Reductionist Competition Rules: A TRIPS Perspective

Abstract

The chapter is divided into two parts. In the first, an examination of the competition rules in the TRIPS Agreement confirms the authority of WTO Members to develop their own antitrust policy regarding IP-related restrictive practices, provided this is done consistently with the TRIPS principles of IP protection. In the second part, the preceding analysis is confronted with the new reality of IP policies, the changed function and modes of exploitation and protection in the innovation-driven, globalized high-tech economy. I argue that the backward-looking focus of TRIPS competition rules on technology dissemination does not match the actual trend of cooperation-based innovation, since, there, a level playing field may only be established by early participation in the innovation process and by early access to enabling information. As industrialized countries have revised their competition policy with a view to supporting group innovation and additionally enhancing the incentives resulting from IP protection, reliance on TRIPS competition rules as a model for domestic antitrust law might contribute to deepening rather then overcoming the technology dependence of developing countries. Introduction While the “preservation of public goods” as such is not a typical role for competition law, the application of this body of law to so-called knowledge goods presents particularly complex issues. Knowledge does not fit neatly into a framework of analysis that treats property as either private or public. Because knowledge is non-rivalrous in character, anyone may adopt it for his or her own individual purposes in the raw state of affairs.

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