The Interaction between Competition Law and Intellectual Property Law, C.D. EHLERMANN & I. ATANASIU (Ed.)

Claus-Dieter Ehlermann, Isabela Atanasiu

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Marked in particular by the recent publication of a joint report by the Federal Trade Commission and the US Department of Justice, but also by the judgment of the Court of First Instance of the European Communities in the Microsoft case, the issue of the interaction between competition law and intellectual property rights was also enriched in 2007 by the publication of the proceedings of the 10th annual European Competition Law Workshops which took place ... two years earlier (on 3 and 4 June 2005) at the Robert Schuman Research Centre of the European University Institute in Florence.

This collective work begins with an overview of the theme and the work written by Professor Hanns Ullrich. This overview is first of all an opportunity to justify the choice of subject. The concomitant evolution of intellectual property rights and competition law contributes to renew the question of their interaction by multiplying the points of contact. In response to the extension of the field of intellectual property leading, on the one hand, in the sphere of patents, to an increase in the number of title applications and, on the other hand, in the sphere of copyright, to the emergence of a right to control access to information, competition law is changing. The latter is now anchored in a more economic approach, which ultimately leads to the substitution of a method centred on the efficiency of the use of intellectual property rights for an analysis formerly based on the scope and legitimate exploitation of such a right.

With the approach justified and the scene thus set, the curtain opens on three sessions, each broken down into two round tables with the participation of eminent European, American, Canadian and even Australian jurists and economists. The exchanges of views are nourished by the variety of profiles invited to speak and by extremely detailed written contributions given to the participants beforehand.

The first round table asks whether intellectual property requires or justifies special treatment under competition rules. This first general question finally sets the tone for all the discussions and contributions that follow. While intellectual property is a property like any other, it nevertheless has some particularities linked in particular to its exposure to free riding. Moreover, the debate cannot be abstracted from an assessment of the merits of competition law in relation to the specific legislation on intellectual property rights in order to remedy the problems observed. This distinction between these two bodies of rules does not, moreover, completely overlap with the question of the timing of intervention, since both branches have ex ante and ex post tools for intervention. During the discussions, Hanns Ullrich notes with interest that intellectual property specialists prove to be the most motivated for an ex post intervention of competition law.

For their part, competition law specialists are many to insist on the limits of this tool to remedy the problems faced by intellectual property. These limitations relate to difficulties in identifying harmful practices and calibrating remedies, and ultimately in ensuring the predictability of the competition rule and its effectiveness in promoting innovation. This critical approach will be confirmed in the second panel reviewing the Block Exemption Regulation and the Community Guidelines on technology transfer agreements. While the participants, first and foremost the representatives of the European Commission, acknowledge that this Community framework presents some advances, several of them insist on its limits, whether in terms of market share thresholds, the treatment of intra-technology competition or territorial restrictions.

The diversity of approaches promoted by the participants is later reflected in the two following round tables, which examine the particular practices of patent pools and collective rights management. The exchanges as well as the written contributions are again in a comparative and transatlantic perspective. Once again, opinions are divided as to which instrument should be used. The work on collective management is of course conducted in the light of the classical case law on prices charged to users and on the extent of the input required from members. However, the interest of the debate and the contributions is to highlight the new dimensions of the subject arising from new rights management technologies and new modes of exploitation.

The workshop, and thus the book, concludes with a review of merger control and abuse of dominance. A first round table focuses on the impact on innovation of mergers in the pharmaceutical industry and, where appropriate, the ex ante intervention of competition authorities. However, the issue may extend to other sectors of interest to information technology. In general, however, conclusions are difficult to draw as the impact on innovation of intervention is discussed both at the competitive assessment stage and at the remedy stage.

The discussion on abuse of dominant position finally reveals that there are as many different interpretations of the Magill and IMS jurisprudence and the Microsoft decision as there are interveners. This highlights the difficulty of finding a common thread that guarantees a degree of predictability. It is difficult to believe that the judgment of 17 September 2007 in the Microsoft case will remedy this situation . Although it does not shed any light on researchers seeking systematization, this judgment, like the book reported here, is no less stimulating!