Digital Rights Management Systems and Competition: What Developments within the Much Debated Interface between Intellectual Property and Competition Law?
IIC, Vol. 39, p. 83, 2008
22 Pages Posted: 2 Oct 2008
Within the ever-green debate 'competition law versus intellectual property law' there is room also for the analysis of new and controversial tools such as the Digital Rights Management (DRM) systems as they do seem to affect competition in good or in bad. As a matter of fact, the adoption of DRM systems has been spreading, and they are currently implemented in an increasing number of sectors. This phenomenon has consequences on competition within traditional markets as well as it creates new markets. The question arises, thus, as to whether the interface between DRM systems and competition enlarges the competition v intellectual property debate, or can be easily explored within those boundaries. The answer is not an easy one. From the analysis of the cases which, on both sides of the Atlantic ocean, considered the DRM systems from a competition law perspective - or on the grounds of competition law principles - concern arises in relation to the effects on competition that their use can generate. It is not only that they can alter the competitive structure of the market by affecting demand and offer thereby establishing new relevant markets or segmenting traditional relevant markets; rather, that they can be used to enable market foreclosure. While some concerns are mutual to all IPRs - or to all new technologies - others are likely to be typical of DRM systems and their implementation. In the paper both of the above mentioned sides of the interface between DRMs and competition are explored through the analysis of relevant case law in order to seek an answer to the question whether these tools enriched of new elements the intersection between intellectual property and competition law.
Suggested Citation: Suggested Citation