Open Access Research Article
INTERPLAY BETWEEN COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS
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Article Details
INTERPLAY
BETWEEN COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS
AUTHORED BY
- SUKHMANI SETHI
ABSTRACT
The focus on the relationship between
competition law and intellectual property rights (IPR), also the two essential
pillars of modern economic systems and the interplay between these domains has
become increasingly vital, particularly in the context of rapidly evolving
technology and global markets. This paper aims to provide a comprehensive
analysis of the dynamic interaction between competition law and Intellectual Property
Rights, shedding light on the challenges, tensions, and synergies that arise at
their intersection.
The paper begins by elucidating as to
the brief background with fundamentals of both competition law and IPR regimes,
highlighting their respective roles in fostering innovation, promoting consumer
welfare, and ensuring market efficiency. It then proceeds to examine the
inherent tensions between these frameworks, focusing on areas such as
anti-competitive practices involving IPR, abuse of dominance by intellectual
property holders, and the balance between exclusive rights and competition.
Furthermore, the paper explores
various approaches adopted by judicially in the courts in navigating the
interface between competition law and IPR. This includes analysing landmark
cases, regulatory guidelines, and enforcement strategies aimed at addressing
anti-competitive conduct while safeguarding incentives for innovation and
investment in intellectual property.
Moreover, the paper delves into
emerging issues and debates shaping the interplay between competition law and
IPR in the digital age, and the implications of big data and platform markets
for competition policy. Through a multidisciplinary approach drawing upon
legal, economic, and regulatory perspectives, this paper aims to contribute to
a deeper understanding of the complex interrelationships between competition
law and IPR.
Keywords:
1. IPR: Intellectual Property Rights
2. CCI: Competition commission of India
3. FRAND: Fair reasonable and
non-discriminatory,
4. OECD: Organisation for Economic
Co-operation and Development
BRIEF
BACKGROUND
Competition law focuses on anti-competitive
trade practices that save the competition from abuse of dominance in the market,
Intellectual Property rights on the other hand acts as a provision giving
exclusive rights to patent and copyright owners further limiting competition
and resulting in the abuse of dominant power. On the same note, Competition law
restricts such a use from becoming misuse by imposing high prices, refusing to
license technology, etc.
Interplay between Competition Law and
Intellectual Property Rights (IPR) is a complex and crucial relationship that
involves balancing the protection of intellectual property with the promotion
of fair competition. Competition law aims to prevent anti-competitive practices
and ensure a level playing field in the market, while IPR grants exclusive
legal rights to creators and inventors, encouraging innovation. This interplay
is evident in various legal frameworks, such as Section 3(5) and Section 4 of
the Competition Act, 2002, which address the relationship between IPR and
competition law in India.[1]
Competition law seeks to preserve the
competitive nature of markets because competition among market forces is
critical in protecting consumers from abuse. While the scope of Intellectual
Property law gives a chance for the creation to be a new property with
independent rights, competition law ensures that these rights are not
mishandled and construed out of the scope and ambit offered.
COMPETITON
ACT
Section 3 prohibiting the
anticompetitive trade practices prohibits but does not limit any person’s
rights to restrain any infringement of or to impose reasonable restrictions
necessary for the protection of rights conferred by laws such as Copyright act,
Patent Act, etc. 3(5) of the competition act gives an exemption to intellectual
property owners under the purview of competition law to use and impose
reasonable conditions on their Intellectual property, however such impositions
by intellectual property owners are only valid to a reasonable extent not
giving any excessive controls or powers in the market hampering the competition
further.
Section 4 which focuses upon the
Abuse of dominant position under the Indian competition act does not impose a
restriction on the existence of dominant position because in a market with
competition there may or may not be an entity at a dominant position therefore,
the act imposes a restriction on the abuse of this dominant position since the
abuse gives a position the entity in the market which is a subject to prejudice
and prohibited practices. Section 4(2) further goes on about if there is abuse
of dominant position, hampering the competition in the market, the same will
impose the said provision to the owners of intellectual property as well, any
abuse by the enterprise will also imply an abuse of the intellectual property.
Competition Law acts like a vigilant
body to keep a track on the structure of comparison of existing opposing to the
entering creation and creating a reasonable market with fair framework of rules
to exist in ensuring no malpractices.
INTELLECTUAL
PROPERTY LAW
Taking an example of whether the sale
of CT scan machines to hospitals would compromise the IP right of the CT scan
machine manufacturer, the CCI concluded that this would not be the case as then
all CT scan manufacturers would need to open diagnostic centres for diagnosing
patients.[2] As
per the Auto Parts case, parties were involved in practices like
forcing customers to use their branded parts at higher prices or restricting
independent repair shops from accessing genuine parts and companies violated
competition law with respect to the after-sales of parts. [3]
Section 15(2) of the Copyright Act, 1957: ‘Copyright in any design, which is
capable of being registered under the Designs Act, 2000, but which has not been
so registered, shall cease as soon as any article to which the design has been
applied has been reproduced more than fifty times by an industrial process by
the owner of the copyright or, with his license, by any other person.’[4]. Pursuant
to Explanation (e) to Section 3(4) of the Competition Act, an IP licensor could
impose a price ceiling (i.e., a maximum resale price) but not a price floor
(i.e., a minimum resale price). Sony Electronics v. Soundview
Technologies Inc., 157 F.Supp. 2d 180 (D.Conn. 2001).[5] A
standard, by definition, eliminates alternative technologies. When a patented
technology is incorporated in a standard, adoption of the standard eliminates
alternatives to patented technology.
The
Intellectual property law gives a creator of that property unlimited rights to
the creation which exists to the extent of the property not being bound.
Boundaries of that property are ensured by acting vigilant mechanisms such as
that of the Competition law. However this vigilant is not acting for the
purpose of limiting intellectual property rights, rather to foster and ensure
free and fair competition in the market.
RELATIVE
UNDERSTANDING OF THE TWO
Intellectual Property Rights are
intended to encourage inventors’ creativity by granting them certain rights
over their inventions that protect their interests in them. These are
exclusionary rights, which grant inventors temporary rights to exclude others
from using their IPR. Competition law, on the other hand, exists to promote
economic growth by restricting rights arising from private property in order to
prevent anti-competitive behaviour.[6]
According to a UNCTAD document
on ‘examining the interface between the objectives of competition policy and
intellectual property,’ the main goal of IPR is to encourage innovation by
providing appropriate incentives. This goal is met by granting inventors
exclusive rights to their inventions for a set period of time, allowing them to
recoup their R&D investments.[7]
One key aspect is the need to prevent
the abuse of dominant positions by IPR holders, as highlighted in Section 4 of
the Indian Competition Act, 2002, which prohibits the abuse of dominance but
does not make exceptions for IPRs. This section focuses on preventing
anti-competitive practices and abuse of market power, rather than targeting the
mere existence of a dominant position.[8]
Moreover, the relationship between
competition policy and patent law is intricate, as competition policy aims to
eliminate unreasonable restraints on competition, while patent laws provide
inventors with temporary monopolies to protect their innovations. This balance
is crucial to encourage innovation, benefit consumers, and promote economy.[9]
In summary, the interplay between
Competition Law and IPR involves navigating the fine line between protecting
intellectual property rights and ensuring fair competition in the market, with
legal frameworks aiming to strike a balance that fosters innovation while
preventing anti-competitive behaviour.[10]
The interplay provides for a
comparative perspective – on an international basis – on the approaches of
different systems between competition law and Intellectual Property (IP).
Although competition law and IP are often interwoven, until this book there has
been little guidance on how they work together in practice.[11]
The aim of both Competition law and
Intellectual Property Rights is to serve the society with innovation and
benefit the same. Intellectual Property promotes innovation and rewarding a
creation by acknowledging and appreciating a creator and competition if healthy
ensures economic growth, innovation, etc in turn benefitting the society.[12]
The same Balance must not be used to find one’s control over the other rather
to ensure that a condition such as monopoly in the market is not created by
either and the balance so striked must build towards the market and the
consumers at a large being benefitted by the distinction of unity in the diversity
of Intellectual property as well as Competition Law.
Competition Law under section 3 talks
about Anticompetitive agreements and Intellectual property owners must ensure
that this anti competitiveness is maintained by them in the process of them
getting their intellectual property in the market by agreeing upon terms that are
intended to limit the intervention of the intellectual property in the other’s
market and stick to their own. Furthermore, competition law also addresses
under section 4 the Abuse of dominant position being a violative practice under
Competition law and the same can impose regulations for the contravention of
the same even by intellectual property owners thereby maintaining a healthy
competition in the market while striving with innovation and developments in
the market.
IP-safeguarded developments can
diffuse all through the economy which is licensing. The presence of innovation
markets in which Intellectual Property proprietors to permit their developments
proficiently and at alluring terms further emphatically affecting their
impetuses to put resources into advancement.[13] Licensing
contracts are for the most part considered to be procompetitive, cultivating
both competition ex post and development ex ante.[14]
However, there are various conditions and kinds of permitting plans that bring
about rivalry concerns. A portion of these worries were tended to in several
OECD Proposals, the remainder of which was adopted in 1989.[15]
From that point forward, various new concerns connected with permitting of
competition have emerged and made discussion and debate within the competitive
sphere.[16]
These incorporate patent thickets, technological stands, standard essential
patents, setting of fair reasonable and non-discriminatory (FRAND) licensing
royalties, and mandatory licensing as both an antitrust encroachment and cure.[17]
OECD recommendations probe towards eliminating
restrictions by marking of trademark and licensing Patent and know how
agreements that throw light upon points such as Adopting effect based licensing
practices, Limit the licensing, out of date(not addressing IP concerns), etc.
However it was contended that IP rights have still not been addressed by the
recommendations and competition concerns have also not been given effect to.
RELATIVE
DIFFERENCES
The current competitive sphere perceives
competition law and Intellectual property law as united yet diverse parts of
the same objective to resolve a conflict of no restraints on the Competition
law but restraints on intellectual property to protect the market from monopoly
of the protected intellectual property.[18]
The pole behind the existence of the
concept of intellectual property is fostering innovation benefitting in an
overall development and growth, encouraging innovators with rights to bar other
parties from availing products that are an innovation based on highly detailed
and fostered projects creating new knowledge and concepts. Therefore,
Intellectual property rights allow the innovator or the original owner with an
monopoly of their own creation to recover and avail what they spent on the
innovation resulting in earning of temporary profits and incentives as a gain
for their creation.[19]
Competition law on the very same end is
extremely strict about disciplining of any kind of anticompetitive conduct,
preventing abuse of monopoly in the market, just allocation and usage of
resources benefitting the consumers with fair and equitable competitive
practices with fair prices, choice for selection in the market, better quality products,
etc. Making sure that dominant power associated with intellectual property
rights is not one that is leveraged, restrictive, unfairly biased is ensured by
competition law. The main aim of competition law being the regulation and
protection of competition in India in turn fostering a positive approach for
innovators in the market for creation of new products and services at a
reasonable and just price with no compromise on the quality as per the
consumers further emphasizing the importance of healthy innovation with the
competitive inputs thus improving consumer welfare as well.
In spite of the constant disparity
between the two, the two regimes coexist maintaining a balance between the two
disciplines and areas of law. Furthermore, the areas are widely anticipated in
many sectors of the economy where there is a lack in the consumer knowledge
which gives a rise to problems like discrimination by the existence of
dominance abuse in the market and abuse of the monopoly the entities hold in
the market giving a rise to anti-competitive trade practices for the regulation
of which certain concepts such as
compulsory licensing has also been addressed to provide for a balance between
the Intellectual property rights in consonance with competition law so that the
innovators of the creations or the owners of intellectual property do not abuse
their privileges and stifle competition by abusing their dominant position.
JUDICIAL
POSITION
The European Union and the United
States in the recent years have received a large number of IPR and competition
related disputes however there are only a few disputes in India involving IPR
and Competition law therefore it is still at a nascent stage.
Conflicts surrounding Intellectual
Property rights were initially resolved by the Monopolistic and Restrictive
trade practices Commission the predecessor of which is the Competition
Commission of India enforcing the Competition Act of 2002 handling the applicability
and enforceability of both the Intellectual property as well as competition law
in India.
In the case of Entertainment
Network Pvt. Ltd. V. Super Cassette Industries Ltd., the supreme court
addressed the issue of subject matter of dispute between Intellectual property
and Competition law. The court in its observations elucidated that even a
Copyright holder is not a sole monopoly power and such a power is limited if
the same disrupts smooth operation of market which would violate competition law
and the same was valid with respect to the refusal of license. It is an unsaid
fact that the Intellectual property owners can reap benefits of their
innovations by issuing of licenses but the same power does not stand as an
absolute.
Competition law and copyright
intersect in various ways, with competition policy goals influencing copyright
law.[20]
Copyright law, despite offering limited protection from competition, allows for
some uses that mitigate inefficiencies and promote innovation. Fair use provisions,
limitations on subject matter, and the first-sale doctrine are examples of how
copyright law incorporates competition policy goals from within.[21]
This interplay aims to balance incentives for creators with the promotion of
consumer welfare and innovation. The historical context, such as the Statute of
Anne, highlights how competition policy has informed copyright law's
development over time, emphasizing the importance of maintaining a competitive
market within the realm of intellectual property.[22]
In the longer run, the protection of
Intellectual property facilitates better competition and Raghavan committee
report on Competition was one of the firsts to give an insight towards the
exclusive exploitation of rights for the protection of Intellectual Property,
having flagged the issue of IPR being a vital standpoint for the consumer’s or
the general public.[23] Exclusive
exploitation of rights on reasonable grounds acts as an incentive in the longer
run.
In the case of FICCI Multiplex
association of India (FMAI) v. United Producers and Distribution and Ors. CCI
C. No. 1/2009. FMAI accused the producers'/distributors' associations
of acting like a cartel and entering into an anti-competitive agreement to
force multiplex owners to accept their revenue sharing demands. Further on, the
Competition Commission of India (CCI) investigated the case and CCI's Director General (DG)
concluded there was evidence suggesting cartel-like behaviour by the
producers'/distributors' associations. CCI ultimately found the allegations by FMAI to be
established and a penalty
of Rs. 1 lakh (US$140 approx.) was imposed on each of the opposite parties
(UPDF, AMPTPP, and FTPGI).
In the case of Amir Khan
Productions v. The Director General (2010) COMP
LJ 580(BOM), the hon ’able court addressed the issue of
Competition law and Intellectual property for the first time. The Bombay high
court held that Competition Commission of India has the Jurisdiction to hear
all Intellectual Property Rights and Competition law cases.
In the case of Erricson v.
Micromax case and others, on March 2013, Ericsson sued Micromax,
claiming damages worth INR 100 crore (~USD 15.2 million) alleging that Micromax
had refused to enter into a licensing agreement covering Ericsson’s patented
innovations across several wireless technology standards after three years of
negotiations failed to yield a license agreement. Micromax, contested the
claims, arguing that Ericsson was not licensing Its SEPs on FRAND terms.
Micromax, with and subsequently Intex, approached the CCI aleging abuse of
dominance by Ericsson. The CCI noting that the practices adopted by Ericsson
were discriminatory and contrary to FRAND terms directed the Director General,
Competition Commission of India (DG)[24]
to investigate Ericsson for any potential violation of the provisions of the
Competition Act. This order of the CCI was challenged by Ericsson before the
Delhi High Court. During the pendency of these proceedings, Ericsson and
Micromax entered into a global patent license agreement and ended their
dispute. Even though Micromax, apparently, has written to the CCI to withdraw
its complaint, the Delhi High Court noted that notwithstanding such withdrawal,
the CCI would be at liberty to proceed against Erriscon for any potential abuse
of its dominant position.[25]
The Madras High Court’s observation
in the Tamil Nadu Film Exhibitors Association v. Competition
Commission of India that the Competition Act permits the parties
to settle their dispute, subject to CCI’s satisfaction that the settlement
would not lead to or help continue any anti-competitive practice in India.[26]
CONCLUSION
The CCI appears to be increasingly
reluctant to view as abusive conduct the use of court proceedings to enforce
legitimate IP rights. For instance, recently the CCI, in an initiation order
in Biocon v. Roche, considered that Roche had been engaged
in a long-drawn-out (and continuing) legal battle involving IP rights before
the Delhi High Court and noted that recourse to legal proceedings is a right of
every party and, as a general principle, cannot be viewed as being sham
litigation except under exceptional circumstances. [27]
The exclusive jurisdiction pertaining
to IP rights and related subject matter is vested with the respective statutory
bodies established under the statutes, such as the Patents Office, the Designs
Office and the Trade Marks Registry. With respect to competition law, the CCI
and the NCLAT have exclusive jurisdiction over competition law cases.[28]
With the prevailing judicial view
that it is the CCI alone which is empowered and equipped so as to address any
competition law related concerns in the exercise of rights by the holder of a
patent and to determine whether the safe harbour provided for under Section
3(5) of the Competition Act is attracted or not.[29]
In conclusion, the interplay between
competition law and intellectual property rights (IPR) represents a
multifaceted and dynamic area of inquiry with profound implications for
innovation, market dynamics, and consumer welfare.
While competition law and IPR regimes
share common objectives of fostering innovation and promoting economic
efficiency, conflicts often arise due to divergent approaches and priorities.
The tension between protecting intellectual property rights as incentives for
innovation and preventing anti-competitive behaviour presents a formidable
challenge for regulators, policymakers, and courts worldwide.
The resolution of conflicts between
competition law and IPR however requires a nuanced and context-specific
approach. Striking the right balance involves recognizing the dynamic nature of
markets, the evolving nature of technology, and the need to promote both
competition and innovation. Flexibility, pragmatism, and a case-by-case
analysis are essential to navigate this complex terrain effectively.
Moreover, as we enter the digital age
characterized by rapid technological advancements and transformative business
models, new challenges and opportunities at the intersection of competition law
and IPR continue to emerge. Issues such as the dominance of digital platforms,
the proliferation of standard-essential patents, and the exploitation of big
data raise novel questions for competition policy and enforcement.
Further on, policymakers,
practitioners, and scholars must remain vigilant and proactive in addressing
these challenges while preserving the delicate balance between competition and
innovation. Collaboration between competition authorities, intellectual
property offices, and other stakeholders is crucial to develop coherent and
effective regulatory frameworks that promote both competition and innovation in
the digital economy.
In conclusion, while the interplay
between competition law and IPR presents formidable challenges, it also offers
opportunities to harness the power of competition and innovation for the
benefit of society as a whole. By fostering an open and dynamic dialogue, we
can navigate this complex landscape and ensure that competition and
intellectual property rights continue to serve as engines of economic growth,
technological progress, and societal welfare.
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[21]WIPO. Available at:
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[27] Conventus Law (2019a) India - the
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[29] Arneja, N., Gandhi, T. and Bhanot, V.
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(Accessed: 07 April 2024).
Article Information
INTERPLAY BETWEEN COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS
Authors: SUKHMANI SETHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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