Wednesday, 5 December 2012

The ineffectiveness of competition law

One theme which can be observed running through intellectual property law over the past two or three  decades is the cutting back of protection to deal with problems that might otherwise - might better - be dealt with by competition laws. So, when the Competition Act 1980 (of blessed memory) failed to remedy the harm caused by the Ford Motor Company's policy of not granting licences to use its registered designs for body panels, design protection for body panels was effectively abolished in the 1988 Act. And although IBM was found (by a Commission decision in 1984) to have abused a dominant position by keeping information about interfaces offered by its computer systems from its competitors, rather than rely on that finding to deal with competition problems in the emerging computer sector, in the software directive the EC excluded interfaces from copyright protection altogether.

Competition law is is a set of rules that seeks to give legal expression to economic concepts. It therefore takes a huge amount of time to weigh the evidence necessary to decide whether an economic wrong is being committed - or, indeed, whether one has been committed. Because the time it takes to deploy the heavy artillery of competition law is the main justification, it seems, for cutting back intellectual property protection to ensure that the competition problems don't arise in the first place. Today we have a classic example reported in European Voice here: a record financial penalty imposed on a cartel that fixed the price (and other matters too) of cathode ray tubes for televisions and computer monitors. Great news for consumers of those goods - were it not for the fact that cathode ray tubes have not been used in those devices for some years.

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