Individual, Multiple and Collective Ownership - What Impact on Competition?

Abstract

IP law, as a matter of principle, allocates the subject matter of protection to owners. However, different forms of ownership are possible, either based on specific legal arrangements (e.g. co-authorship) or as a result of contractual arrangements. Depending on the circumstances in a particular case, the impacts of different forms of ownership on competition vary. The more open a system of ownership turns out to be for third parties, the less we are faced with negative competitive impacts, and the more likely new innovations or creations will occur.

At the same time, open systems are not in conflict with IP law - on the contrary. Based on the power to prohibit use activities entirely, right holders alternatively may allow for certain uses under specific conditions. Notably, the requirement to keep a system open in cases of creative or inventive uses of the subject matter of protection (e.g. such as the creative commons licenses) would not be enforceable without IP rights. Open systems therewith constitute special licensing regimes ultimately providing for more innovation and creation.

All the same, incentives to choose an open systems are weak. IP rights are hardly enforced by the creators or inventors themselves, but rather by the marketers of IP-related products. Such marketers, however, have strong incentives to pursue proprietary systems avoiding competition, and therewith increasing their own profits. Hence, IP rights risk displaying dysfunctional effects, notably prohibiting new creations or innovations. Such dysfunctional effects may be prevented, or at least limited, by provisions facilitating (compulsory) licensing.

Keywords: exclusive right, intellectual property, ownership, competition, patent law, copyright law, trademark law, geographical indications, unfair competition, open access, open source, open innovation, compulsory license