For instance, if a refusal to license deters follow-on innovation, competition law may step in through the provision of compulsory licensing. The Court of Justice of the European Union (CJEU) has made it clear that competition law is applicable against IP rights only in ‘exceptional circumstances’ (see here and here), and not with the ‘normal exercise’ of IP rights.
Competition law is concerned with the ex post exercise of this right that may be detrimental to consumers welfare. The protection of IP rights is the domain of IP statutes. The Relationship between IP and Competition Law This seemingly benign declaration, however, may create new problems in the AoD cases related to intellectual property. A closer look at the existing Section 3(5) or at the newly proposed Section 4A clarifies that it is not a blanket exemption to IP rights from the application of competition law as such, rather it is a declaration to affirm the right of an IP holder to safeguard her intellectual property. Section 4A is not a brand new addition as such, as it extends the similar provision to Abuse of Dominance (AoD) cases that was hitherto applicable to anti-competitive agreements in the form of Section 3(5) as a ‘balancing’ provision. “Nothing contained in section 3 or section 4 shall restrict the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred under…(a) the Copyright Act, 1957 (14 of 1957) Among several other new provisions, the Bill proposes a new Section 4A that reads as follows. Last month, the Ministry of Corporate affairs came up with the draft Competition (Amendment) Bill, 2020, pursuant to the recommendations of Competition Law Review Committee. The Proposed Section 4A of the Competition Act: Protection to Holders of Intellectual Property Rights Maas some of the provisions, including Section 4A, may have serious consequences on competition in India. The Ministry of Corporate Affairs has invited public comments on the draft Bill and we would encourage our readers to submit their comments before the specified deadline i.e. He has many publications to his credit and he is a regular contributor to policy discussions at the interface of IP and competition law. Kathuria is a Senior Research Fellow at the Max Planck Institute for Innovation and Competition, Munich and was formerly a faculty member at School of Law, Benett University. Vikas Kathuria on the new section 4A proposed by the Draft Competition (Amendment) Bill, 2020, which would extend the IP related exception to abuse of dominance cases also. We’re pleased to bring to you an insightful guest post by Dr.
0 kommentar(er)
