Bulletin n. 1/2012
June 2012
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Reto M. Hilty
    La Constitution économique européenne et la propriété intellectuelle
    in Revue internationale de droit économique , Vol. 25, n°4 ,  2011 ,  481-510
    At first sight, « intellectual property » rights, which according to the general view are intended to provide an incentive for the production of new creations and innovations, appear to be distinguishable from the regulatory approaches to the control of competitive processes. Seen more closely, however, there is a degree of complementarity in that ultimately all these regulations focus on competitive mechanisms. Regarded in this way, intellectual property systems, considered in a broad sense, are part of what can be described as market behaviour law. The purpose of this market behaviour law is to intervene in the free forces of competition if investments must be made that could not be amortised adequately without legal protection, where there is a risk that such investments would not be made. An intervention in the free forces of the market is accordingly justified if the naturally existing competitive mechanisms fail, in particular where the first-mover advantage is not sufficient in order to ensure a return on investment. This is definitely the case if third parties can exploit another’s investments too quickly or too inexpensively. The cut-off point between where protection is to be granted and where it is not to be granted is a delicate issue. The legal system must not be used as a tool to cushion the consequences of individually unsuccessful conduct. Functioning, dynamic and undistorted competition is, on the contrary, characterised by the fact that competitors who are unable to hold their ground will disappear from the market. Accordingly, competition also involves seeing imitation as a fundamentally permissible process. It leads to the positive effect that the investing innovator’s monopoly position that exists in the first phase is brought to an end, allowing other competitors to make their appearance on the market. This means that the volume available gradually increases, thereby reducing the risk of exorbitant prices. The approaches to the implementation of such investment protection mechanisms in the various legal systems are extremely variable. A number of degrees of density can be identified, with « genuine » protection, seen from the logic of market behaviour law, not being directly linked to the quality of the product that is produced as a result of the investment. Instead, the question must be asked whether the conduct of the imitating competitor is capable of squeezing the original competitor from the market and whether in the long term this leads to a failure of the market. Thus investments should not be protected unconditionally, but instead imitations by third parties must be permissible as long as there is no risk of a market failure. This is essential because often it is only the possibility of being able to have recourse to or to develop on what already exists – and has been created by third parties – that makes progress at all possible. This approach is not at first sight reflected in the actual intellectual property rights ; instead, these are characterised by special preconditions for protection. In a qualitative sense, therefore, there must be something unusual that is the direct subject matter of protection. Nevertheless, intellectual property rights also derive their justification essentially from competition law considerations ; taken to their logical conclusion, they put investment protection at a higher level. Consequently, account must also be taken of the fact that excessive protective mechanisms can impede future innovations and creation. These basic values are also reflected in principle in the European economic constitution. On the other hand, secondary law is relatively little permeated by an overall concept for a market behaviour law in the broad sense. The harmonisation of legislation to date has been characterised by an ongoing increase of the minimum level of protection in the Member States. However, this focus appears too short-sighted if one considers the objectives of the internal market. The aim should not be to maximise protection ; what must be achieved is the right extent of investment protection – at whatever degree of density. This can also require national legislature to prohibit certain country specific, anticompetitive approaches to protection.
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