Microsoft, refusal to license intellectual property rights, and the incentives balance test of the EU commission
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
This article contributes to the analysis of refusal to license cases as abuse of a dominant position pursuant Article 82 EC from an economic perspective. In the Microsoft case, the European Commission introduced an "Incentives Balance Test" to assess whether the refusal to give access to interface information can be justified by arguing that this information is protected by Intellectual Property Rights (IPRs): The Commission argued that if the overall innovative effects evoked by a compulsory license are significantly higher than without this access, the IPR owner is obliged to license. This should be assessed through balancing the different incentives to innovate between the dominant firm and its competitors. In the paper we pursue two objectives: Firstly, we analyze to what extent the decision of the Court of First Instance, which confirmed the decision of the Commission, helps to clarify the criteria in refusal to license cases; in fact, it is disappointing in this regard. Secondly, we demonstrate that the basic idea of the Incentives Balance Test can be interpreted as a test whether the specific IPRs of the dominant firm can be defended from the perspective of the economics of IPRs. This implies that Article 82 allows competition law to correct economically not optimal IPRs through a specific economic analysis. This is followed by a broad overview on theoretical and empirical insights from economics of IPRs, innovation economics and competition and network economics that can help to develop a more general and sophisticated Innovation Effects Test that can be applied in Article 82 refusal to license cases.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Anthony J. Stenson & Tim S. Gray (1999). An Autonomy-Based Justification for Intellectual Property Rights of Indigenous Communities. Environmental Ethics 21 (2):177-190.
Tim S. Gray (1999). An Autonomy-Based Justification for Intellectual Property Rights of Indigenous Communities. Environmental Ethics 21 (2):177-190.
Kasper Lippert-Rasmussen (2008). Inequality, Incentives and the Interpersonal Test. Ratio 21 (4):421-439.
Daniel Read (2005). Monetary Incentives, What Are They Good For? Journal of Economic Methodology 12 (2):265-276.
Michael Gorman (2005). Intellectual Property Rights, Moral Imagination, and Access to Life-Enhancing Drugs. Business Ethics Quarterly 15 (4):595-613.
Yu-Lin Chang (2007). Who Should Own Access Rights? A Game-Theoretical Approach to Striking the Optimal Balance in the Debate Over Digital Rights Management. Artificial Intelligence and Law 15 (4):323-356.
Betty Yung (2009). Reflecting on the Common Discourse on Piracy and Intellectual Property Rights: A Divergent Perspective. [REVIEW] Journal of Business Ethics 87 (1):45 - 57.
Herman T. Tavani (2005). Locke, Intellectual Property Rights, and the Information Commons. Ethics and Information Technology 7 (2):87-97.
Theodoros Papaioannou (2006). Towards a Critique of the Moral Foundations of Intellectual Property Rights. Journal of Global Ethics 2 (1):67 – 90.
Added to index2009-01-28
Total downloads18 ( #105,884 of 1,410,540 )
Recent downloads (6 months)2 ( #108,810 of 1,410,540 )
How can I increase my downloads?