L’articulation des droits de propriété intellectuelle et du droit de la concurrence, Pascale TRÉFIGNY (dir.)

Pascale Tréfigny

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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Directed by Pascale Tréfigny, professor at the University of Grenoble-Alpes and co-director of the CUERPI-CRJ, this book lists the contributions of researchers and professionals, specialists in competition law and/or intellectual property rights, who spoke at the 2018 conference organised by the CUERPI-CRJ and devoted to the articulation of intellectual property rights and competition law. It thus provides an overview of the major issues that animated the debate on the relationship between these two sets of rules.

The book is introduced by Pascale Tréfigny, who recalls the foundations of the debate and announces the structure of the book. The book seeks to develop, firstly, the idea of a confrontation between intellectual property rights and European competition law, and secondly, the idea of convergence between these two branches of law. The introduction continues under the eye of an economist, Frédéric Marty, who discusses the activation of the theory of essential infrastructures in the digital economy, and more particularly its application to intellectual property rights, and then under the eye of a lawyer, Muriel Chagny, who analyses the relationship between competition law and intellectual property rights. The competition law specialist invites us to go beyond the primary vision of the opposition between these two rights and insists on the idea of convergence towards a common objective: the protection of innovation. This idea is taken up again through the various contributions and by Fabrice Siiriainen in conclusion.

The first part of the book is devoted to "the confrontation of intellectual property rights and competition law". In the first contribution, Gilles Vercken (lawyer) sets out the impact of competition law on the mechanisms of collective management of copyrights, which are both weakened and strengthened by competition law through price controls and the obligation of transparency on prices. Nevertheless, the balance seems to be tilted towards the weakening of collective management insofar as, according to the author, this transparency is not effective in practice.

The second contribution deals with the problem of exclusive rights on visible spare parts, which lead to a monopoly on the market for the repair of these parts, itself involving in practice an explosion of prices on this market to the detriment of consumer welfare. According to Charles de Haas (lawyer), the solutions in positive law which seek to deny both design rights over these parts and competition law are unsatisfactory. The application of the essential infrastructure theory, from which an obligation to grant a licence in return for a FRAND fee would derive, is envisaged in conclusion.

In the third contribution, Amélie Favreau (senior lecturer) develops the idea that the use of massive data affects or may affect competition in digital markets. The Google Shopping case is analysed and solutions to the anti-competitive behaviour induced by the possession of massive data are proposed.

Caroline Le Goffic (senior lecturer) later demonstrated that if competition law applied only to informational works, this trend seems to be fading as the notion of a market for literary and artistic works emerges. She analyses the role of the substitutability test, borrowed by French judges in cases involving literary and artistic property rights.

The idea of convergence between these two branches of law is clearly apparent in Thierry Van Innis’s contribution. The lawyer emphasises that although these two rights tend to be opposed, from a French point of view, they are considered to be more convergent by European case law, which considers intellectual property to be a necessary instrument for the functioning of the Union and the single market. The author returns to the Mitsubishi case, in which the ECJ had the opportunity to express the importance given to trade mark law, which, according to the Court, constitutes an "essential element of the system of undistorted competition".

Finally, the central question of the achievement of innovation is addressed by Walid Chaiehloudj (lecturer). The author outlines the various strategies implemented by firms to prevent new market entrants from entering the market and highlights how these behaviours, sometimes taking the form of "predatory innovations", hinder actual or potential innovation.

The second part of the book is devoted to the question of the necessary cooperation of these two rights, with the common objective of promoting innovation. Nicolas Binctin (professor) demonstrates, first of all, how intellectual property must be seen as "full and entire" property and not as an exception to competing fundamental rights.

Subsequently, the idea of a common objective of promoting innovation is clearly emphasised by Wladimir Soltmann (permanent rapporteur for the investigation services of the Competition Authority), who develops the idea that the defence of innovation by competition law is expressed most visibly in the field of merger control.

Jean-Michel Bruguière (Professor), on the other hand, addresses the question of the conditions under which an infringement action may constitute an abuse of a dominant position. In this respect, he comes back to the Huawei judgment of the CJEU and recalls the conditions that must be met for an infringement action to escape such a classification.

Sylvie Cholet (lawyer) deals with the problem, specific to the digital environment, of the concentration of online advertising markets and the regulation of these markets by competition law.

Finally, Adeline Golvet (lawyer) explains the strategic choices to be made in order to secure an invention or creation. She emphasizes that competition law, through the recognition of selective distribution networks, allows right holders to control their products.

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  • University of Paris I Panthéon-Sorbonne


Elsa Haïm, L’articulation des droits de propriété intellectuelle et du droit de la concurrence, Pascale TRÉFIGNY (dir.), November 2020, Concurrences N° 4-2020, Art. N° 97383, p. 278

Publisher Dalloz, collection Thèmes et commentaires

Date 5 February 2020

Number of pages 192

Visites 210

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