Competition Between
IPR & Competition Law
Ashish Chandra
Strictly Confidential - Not for Distribution
Opening Statement
It is a longstanding topic of debate in economic and legal circles: how to marry the innovation bride and the competition groom
Mario Monti, European Commissioner for Competition Policy, January 2004
Purpose
Competition law:
Concerned with business activities Requires the application of economic theory Prohibit business conducts which harms competitive markets
IPR laws
Concerned with protection the investment of intellect and resources Requires the application of public policy theory To create acceptable monopolies over the intellectual assets
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Purpose
Common purpose to promote innovation
IPR laws: To promote innovation by recognizing and protecting intellectual capital Competition law: To promote innovation by creating environment of healthy competition
IPR laws self sustained code for anti-competition?
Statutory License Compulsory License Fair Use Tariff determination
The objective of above principles is public policy and public interest
Other legislative measures to check anti-Competition
Sector specific regulations eg:
Telecom & Broadcasting: TRAI Medicines: Drug controller of India
Usual restrictions of IPR owners
Refusal to deal Patent pooling & cross licensing (similar to copyright societies) Differential terms of sale of same product Different prices for different territories Closed technological standards Cartelization v. collective bargaining Excessive rights management Tie-in sales Non Compete arrangements
Competition Act
Section 3 Anti-competitive agreements
Exception to IPR owners for:
Retraining any infringement Impose reasonable conditions
Section 4 Abuse of dominant position
IPR creates monopoly Puts IPR owner into a dominant position Trigger point is abuse of dominant position
Important concepts under Competition Law for IPRs
AAEC
Appreciable v. perceptible Adverse v. tolerable
Dominance v. Abuse of dominance Relevant market Essential facilities doctrine Safety Zone for IPR owners
Relevant Market Media, Internet, Tech & Sports
Media:
Television:
Pay TV v. Ad funded TV
DTH / Cable / IPTV / Mobile TV
Over the top internet media consumption
sVOD / adVOD / PPV / P2P
Music
Recording & Distribution Music Publishing Online music market
Media:
Relevant Market Media, Internet, Tech & Sports
Print Media
Books Journals Periodicals News Papers
Film
Production Distribution Exhibition (on various mediums)
E-Commerce:
Nature
Relevant Market Media, Internet, Tech & Sports
B2B C2C B2C Social buying v. group buying v. classifieds v. classic e-commerce
Facilitators
Shipments Payments
Placement & listing Keyword Advertisements
Software:
Relevant Market Media, Internet, Tech & Sports
Operating System Microsoft v. Sun Microsoft Systems, 2004 (EC decision)
PC Mobile Tablets
Middleware
Classic case of Microsoft to open its middleware for third party application developers
Application Software
Industry specific Usage specific
Sports
Relevant Market Media, Internet, Tech & Sports
Nature of sports Sports association Sponsorships Ticket sales arrangements Sports media rights
Recent CCI orders concerning IPRs
Title BigFlix Microsoft Ratio No dominant position as multiple online movie rental players in the market No abuse of dominance by providing diff price for diff market
Google India
ETC Network Multiplex Assn. Dish TV v Prasar Bharti KBC SAG AG ISAPI v DOT
No abuse of dominance by not providing ad impression and click through information to advertisers
No dominant position in the relevant market Cartelization v. Collective Bargaining Refusal to place advt on a public platform of competing services is not anti-competitive KBC is not affecting other shows in the similar genre of GEC channels Complainant failed to prove dominance or abuse of dominance DOT is not an enterprise. DOT exercises sovereign functions which are outside Competition Law
Future issues in tech related anti competition
Standardization of technology network and interoperability Network Access and Net Neutrality Over-regulation? Regulatory convergence in the era of technological / media convergence From ex post to ex ante remedy
My 2 cents.
Commercial Dispute v. Anti-competition A mere dominance is not anti-competitive A generic abuse of dominance is not sufficient:
Abuse should lead to AAEC AAEC should impact relevant market
For public policy issues take shelter of legal tools in IPR laws use competition law if there are business issues Expert opinion is a must have to identify dominance, its abuse & its impact Competition law is a specialized field of law
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