“On the intersection of IPRs and Competition Law with regard to information technology markets”

The problem of the so-called ‘intersection’ between intellectual property and competition law – which will be dealt with mainly from the European perspective – is rooted in the apparent antinomy of the respective (direct) goals: fostering innovation through the attribution of exclusive/excluding rights on one hand, and preserving freedom of access to the market on the other. However, IPRs do not per se confer monopolies in economic sense, since they should typically allow the entrance of substitute products onto the market. Only in some circumstances is it possible for the market power enjoyed by IPR-holders to grow into a true foreclosure of third party competition, leading to a de facto monopolization. We argue that in such cases, not simply competition is hampered but also the dynamic process of innovation is at stake. Consequently, in such cases antitrust remedies should ‘march in’ to preserve the ultimate goals of both branches of law. In particular, focusing on the IT market(s), this paper will discuss whether and to what extent a right of access (typically in the form of a non-voluntary licence) to innovative ‘creations’ of information technologies protected by copyright or patents should be granted to third parties if the exercise of the excluding powers typically associated with IPRs would risk preventing those parties from operating as competitors on a related (downstream) market or even – more controversially – on the same market.