Download this Paper Open PDF in Browser

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

INDIVIDUALISM AND COLLECTIVIZATION IN INTELLECTUAL PROPERTY LAW, p. 3-44, Jan Rosén, Edward Elgar, 2012

Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 11-04

42 Pages Posted: 18 May 2011 Last revised: 16 May 2012

Reto Hilty

Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich

Date Written: March 2, 2011

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

Suggested Citation

Hilty, Reto, Individual, Multiple and Collective Ownership - What Impact on Competition? (March 2, 2011). INDIVIDUALISM AND COLLECTIVIZATION IN INTELLECTUAL PROPERTY LAW, p. 3-44, Jan Rosén, Edward Elgar, 2012; Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 11-04. Available at SSRN: https://ssrn.com/abstract=1774802

Reto Hilty (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

HOME PAGE: http://www.ip.mpg.de

University of Zurich

Rämistrasse 74/7
Zürich, CH-8001
Switzerland

Ludwig Maximilian University of Munich

Munich, 80539
Germany

Paper statistics

Downloads
363
Rank
67,615
Abstract Views
1,537