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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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PART III. INFORMATION DOMINANCE: THE LIMITS OF THE COMPETITION RULES AND THE PUBLIC INTEREST

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PART III INFORMATION DOMINANCE: THE LIMITS OF THE COMPETITION RULES AND THE PUBLIC INTEREST 241 CHAPTER 10 Can Intellectual Property Rights Be Construed by the Courts to Limit their Use for Anti-Competitive Purposes? Eileen SHEEHAN* Référendaire, Court of Justice of the European Communities Introduction The purpose of this chapter is to examine, with reference to recent case law of the European Court of Justice (hereinafter ECJ) concerning the sui generis protection of databases, the role of courts, when constru- ing intellectual property legislation, in limiting the possibility for intel- lectual property to be used as an instrument for anti-competitive pur- poses. The case law of the Federal and Sixth Circuits of the United States Court of Appeals on Section 1201 of the 1998 Digital Millenium Copyright Act (hereinafter DMCA) concerning the circumvention of copyright protection systems and aftermarkets is also briefly examined. In four cases,1 which were referred to the ECJ on foot of the Arti- cle 234 EC preliminary reference procedure, that court provided some guidance as to the interpretation of a number of key provisions relating to the sui generis database right which was established by Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases2 (hereinafter the Directive). * The views expressed in this paper are solely those of the author. 1 ECJ of 9 November 2004, Case C-203/02, The British Horseracing Board Ltd and Others v. William Hill Organization Ltd, 2004, ECR I-10415 (the...

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