Competition Law and Policy Intellectual Property€¦ · Competition Law and Policy (1/2)...
Transcript of Competition Law and Policy Intellectual Property€¦ · Competition Law and Policy (1/2)...
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UNCTAD’s work in the fields of
Competition Law and Policy&
Intellectual Property
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Agenda
• Part 1: Presentation of UNCTAD’s work in the fieldof Competition Law and Policy
• Part 2: Presentation of UNCTAD’s work in the fieldof Intellectual Property
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Rationale for UNCTAD’s work in the field ofCompetition Law and Policy (1/2)
Competition Law and Policy considered as:
• important pillar for a thriving market economy,– wherein competitive pressure hones productive efficiency
and– stimulates product and process innovation fundamental to
international competitiveness and economic growth;
• tool for consumer access to a wider range of cheaper and betterproducts;
• means to ensure that benefits from trade liberalisation arepassed on to the consumers.
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Rationale for UNCTAD’s work in the field ofCompetition Law and Policy (2/2)
Global dimension of conviction of benefits ofcompetition:
• In 1980, less than 20 countries had a competition law;
• Today, more than 100 countries and regional organisationshave adopted a competition law regime;
• Competition law and policy have become a matter of interest formany developing countries;
• Large number of developing countries have adopted competitionlaws and policies or are currently in the process of doing so.
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Basis for UNCTAD's work in the field ofCompetition Law and Policy
Adopted in 1980, the “Set”:
• sets out equitable rules forthe control of anti-competitive practicesaddressed to companies andstates;
• recognizes the developmentdimension of competition lawand policy; and
• provides for a framework forinternational cooperation andexchange of best practices.
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Three Pillars of UNCTAD’s work in the fieldof Competition Law and Policy
ConsensusBuilding
(IntergovernmentalMachinery)
Research TechnicalAssistance
UN Set of Principles and Rules on Competition of 1980
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Consensus Building
• Every 5 Years: Conference to review the Set and itsimplementation by member States
� Next UN Review Conference: 8 to 12 November2010 in Geneva
• Every year: Intergovernmental Group of Experts onCompetition Law and Policy (IGE)
� Last IGE: July 2009
Forums to exchange experience in the field ofcompetition law and policy
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Research
• Comparative research as preparation forintergovernmental meetings:
In the field of competition and IPR: Paper on
“Competition Policy and the Exercise ofIntellectual Property Rights”
• Technical Series on Competition Policy
• Research within specific technical assistanceprojects, e.g. market studies for competitionadvocacy
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Technical Assistance
Policy
• Formulation of competition policy, including advice onhow to design interface between competition policyand IPR
• Design and implementation of competition advocacyprogrammes
Legislation• Drafting of competition legislation, including advice on
how to draft provisions dealing with the interface ofcompetition law and IPR
• Revision of existing competition legislation
Enforcement• Workshops and trainings for personnel of competition
authorities• Conferences for judges• UNCTAD Peer Review of Competition Law and Policy
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UNCTAD approach re the interface ofCompetition Law and Policy and IPR when
advising on design of competition laws
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Complementary between Competition Law &Policy and Intellectual Property Laws (1/2)
Competition law
⇒ Prohibition of anti-competitive agreements,
⇒ Prohibition of the abuseof market power
⇒ Merger control
Common objective:
Stimulating innovation to the benefit ofconsumers
Intellectual PropertyRights
⇒ Reward of innovations bygranting exclusivity rights
Different tools/methods of functioning
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Complementary between Competition Law &Policy and Intellectual Property Laws (2/2)
Intellectual PropertyRights
Exclusivity rights are animportant tool to stimulateinnovation.
⇒ However, throughexclusivity, IPRs may allowtheir holders to acquiresubstantial market power.
Competition law
Substantial market power/dominance not prohibited!
Competition concerns relatedto substantial marketpower addressed through:
⇒ Prohibition to abusedominant position, and
⇒ Merger control.
Conceptualtensions?
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UNCTAD approach based on memberStates’ experience/legislations
Model Law
Chapter 2 (Definitions and scope of application)
“II. Scope of application(a) Applies to all enterprises as defined above, in regard
to all their commercial agreements, actions ortransactions regarding goods, services or intellectualproperty.”
Commentaries
“19. The reference to intellectual property is consistentwith virtually all antitrust laws, which treat licences oftechnology as “agreements” and scrutinize them forrestrictions or abuses like any other agreement, exceptthat the legal exclusivity granted by the State toinventors may justify some restrictions that would not beacceptable in other contexts.”
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However, rememberUN principle:
No size fits all!
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Agenda
• Part 1: Presentation of UNCTAD’s work in the fieldof Competition Law and Policy
• Part 2: Presentation of UNCTAD’s work in the fieldof Intellectual Property
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UNCTAD Mandates on IP and Development
• Paragraphs 103 and 153, Accra Accord• Rec. 40, WIPO Development Agenda• 2008 WHO Global Strategy and Plan of
Action on Public Health, Innovation andIntellectual Property
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UNCTAD’s IP Programme: Interface of IPand Competition
Approaching question from IP angle allowswider lens than question of whether competitionlaw violation has taken place.
PRODUCTS– Policy Briefs, Issue Papers, Books
– Advisory Reports based on requests for technicalassistance from developing countries
Work is coordinated with Competition Branch.
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Representative Outputs
TRIPS provisions, Arts. 31 and 40- Resource Book (2005)
Generic competition and the pharmaceuticalindustry- Negotiating Health (2006)
Thailand – advisory study on interface betweencompetition and IP law (2009)
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IP Regime and its Impact on Competition
Competition regimes in many developingcountries often not well equipped tohandle IP cases
IP regimes can be structured to helpensure a better balance betweenexclusive rights and fair competition
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Further information available at:
http://www.unctad.org/competition
and
http://www.unctad.org/ddip
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Thank you!