Expansionist Intellectual Property Protection and Reductionist Competition Rules: A Trips Perspective

Abstract

While the "preservation of public goods" as such is not a typical role for competition law, the application of the body of law to so-called knowledge goods presents particularly complex issues. Knowledge does not fit neatly into a framework of analysis that treats property as either private or public. Because knowledge is nonrivalrous in character, anyone may adopt it for his or her own individual purposes in the raw state of affairs. The state may accordingly decide to stimulate the creation of knowledge by providing public parties with legal means of appropriating it, as for example, by laws protecting trade secrets and confidential information, by enforcing contractual agreements, or by enacting the exclusive rights of intellectual property regimes. In that event, competition law intervenes to ensure that private parties do not either jointly or individually, by the exercise of market power, extend that appropriation beyond the limits allowed by law.

Keywords: Intellectual property, competition law