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Intellectual Property, Market Power and the Public Interest

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Edited By Inge Govaere and Hanns Ullrich

The main objective of the contributions to this book is to bring together two seemingly different strands of thought: the competition-law analysis of the exercise of intellectual property, and the discussion about the proper limits of protection, which at present takes place inside the intellectual property community. Both are burdened with their own problems, particularly so in Europe, where market integration and the divide between exclusionary and exploitative abuses ask for a more dimensional approach, and where the shaping of intellectual property protection is under not only the influence of many interests and policies, but a multi-level exercise of the Community and its member states. The question is whether, nevertheless, there is a common concern, or whether the frequently asserted convergence of the operation and of the goals of competition law and intellectual property law does not mask a fundamental difference – namely that of, on the one hand, protecting freedom of competition against welfare-reducing restrictions of competition only, and, on the other, limiting the protection of exclusive rights in the (public) interest of maintaining free access to general knowledge. The purpose of the workshop held in 2007 at the College of Europe, Bruges, and whose results are published here, was to ask which role market power plays in either context, which role it may legitimately play, and which role it ought not to play. A tentative answer might be found in the general principle that, just as intellectual property does not enjoy a particular status under competition law, so competition law may not come as a white knight to rescue intellectual property protection from itself. However, the meaning of that principle differs according to both the context of the acquisition and the exploitation of intellectual property, and it differs from one area of intellectual property to the other. Therefore, an attempt has also been made to cover more facets of the prism-like complex of problems than is generally done.

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Preface 9 - Hanns Ullrich & Inge Govaere

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9 Preface Most of the time long introductions to the publication of workshop contributions are a nuisance. The contributions presented here stand for themselves. The way each of them approaches the subject of the work- shop shows that the interrelationship between market power and the protection of intellectual property has more aspects than the current controversies, which mainly surround the application of Art. 82 of the Treaty to the exercise of the exclusive rights resulting from intellectual property, reveal. The objective of our workshop was twofold. On the one hand, we wished to point to the many facets of this prism-like complex of problems by looking also at other types of intellectual property than just patents and copyright, which are at the focus of the debate over the proper rules for refusals to license. On the other hand, we endeavoured to bring together two seemingly different strands of thought: the competition-law analysis of the exercise of intellectual property, and the discussion about the proper limits of protection which, at present, takes place inside the intellectual property community. Both are burdened with their own problems, particularly so in Europe. Market integration and the divide between exclusionary and exploitative abuses call for a pluri-dimensional approach. Acknowledging that the shaping of intellectual property protection is not only influenced by many interests and policies but rather a multi-level exercise of the Community and its Member States. The question is whether, nevertheless, one may discern a common concern or whether the frequently asserted conver- gence...

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