Beyond 'Essential Facilities': Innovation, Intellectual Property and Competition Policy Across the Atlantic

The State Administration for Market Regulation has referred to the concept of "essential facilities" in two regulations, and some courts have utilized the essential facilities doctrine in their judgments to recognize a defendant's refusal to deal as an illegal act of monopolization. As a doctrine originally applicable only to tangible properties in the United States, the essential facilities doctrine has gradually evolved through case law to be applied in the context of intellectual property (IP) rights. Nevertheless, there remains significant controversy in China and other jurisdictions as to whether the essential facilities doctrine can be extended to IP rights. Given the fundamental differences between intangible and tangible properties, as well as the core mechanisms of IP laws, greater caution and limits must be exercised when applying the essential facilities doctrine to IP. Specifically, (1) compulsory licensing should only be implemented when the IP in question is deemed an essential facility; (2) Article 7 of the Provisions on the Prohibition of the Abuse of Intellectual Property to Eliminate or Restrict Competition should be interpreted as "harm the competition in the secondary market"; and (3) in cases involving compulsory licensing, the court should examine whether such licensing would have an unreasonable adverse impact on the rights holder.

Interface between Intellectual Property and Competition Law: Essential Facilities Doctrine

The Colour of Copyright

Intellectual Property Rights and Standard-Setting Organizations

Author(s): Lemley, Mark A. | Abstract: The role of institutions in mediating the use of intellectual property rights has long been neglected in debates over the economics of intellectual property. In a path-breaking work, Rob Merges studied what he calls collective rights organizations, industry groups that collect intellectual property rights from owners and license them as a package. Merges finds that these organizations ease some of the tensions created by strong intellectual property rights by allowing industries to bargain from a property rule into a liability rule. Collective rights organizations thus play a valuable role in facilitating transactions in intellectual property rights.There is another sort of organization that mediates between intellectual property owners and users, however. Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners).How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is open or closed. It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves.Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have studied the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries. This is no accident; interface standards are much more prevalent in those industries than in other fields. In Part I, I provide some background on SSOs themselves, and discuss the value of group standard setting in network markets. In Part II, I discuss my empirical research, which demonstrates a remarkable diversity among SSOs even within a given industry in how they treat intellectual property. In Part III, I analyze a host of unresolved contract and intellectual property law issues relating to the applicability and enforcement of such intellectual property policies. In Part IV, I consider the constraints the antitrust laws place on SSOs in general, and on their adoption of intellectual property policies in particular. Part V offers a theory of SSO intellectual property rules as a sort of messy private ordering, allowing companies to bargain in the shadow of patent law in those industries in which it is most important that they do so. Finally, in Part VI I offer ideas for how the law can improve the efficiency of this private ordering process.In the end, I hope to convince the reader of four things. First, SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives in different industries. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, the law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. And enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law, issues that will need to be resolved if SSO IP rules are to fulfill their promise of solving patent holdup problems.My fourth conclusion is an optimistic one. SSOs are a species of private ordering that may help solve one of the fundamental dilemmas of intellectual property law: the fact that intellectual property rights seem to promote innovation in some industries but harm innovation in others. SSOs may serve to ameliorate the problems of overlapping intellectual property rights in those industries in which IP is most problematic for innovation, particularly in the semiconductor, software, and telecommunications fields. The best thing the government can do is to enforce these private ordering agreements and avoid unduly restricting SSOs by overzealous antitrust scrutiny.

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

This paper analyzes the criteria for applying the essential facilities doctrine to intellectual property rights and the possibility of applying it in cases where Big Data is the alleged essential facility. It aims to answer the research question: “What are the specifics of the intellectual property criteria in essential facilities cases and are these criteria applicable to Big Data?” It points to the semantic openness of the “new product” and “technical progress” conditions that have been developed for assessing whether an intellectual property right constitutes an essential facility. The paper argues that the intellectual property criteria are not applicable in all access to Big Data cases because Big Data is not necessarily protected by copyright. While a set of Big Data could be protected by copyright if certain conditions are met, even in such cases the lack of intrinsic value of Big Data significantly limits the applicability of the intellectual property criteria.

The Interface of Competition and Intellectual Property Law – Taking Stock and Identifying New Challenges

Intellectual Property: The Promise and Risk of Human Rights

Compulsory licences of IP rights: easier to get after the IMS health decision?

Intellectual Property Rights and Their Interface with Competition Policy: In Balance or in Conflict?

The role of institutions in mediating the use of intellectual propertyrights has long been neglected in debates over the economics ofintellectual property. In a path-breaking work, Rob Merges studied what hecalls "collective rights organizations," industry groups that collectintellectual property rights from owners and license them as a package.Merges finds that these organizations ease some of the tensions created bystrong intellectual property rights by allowing industries to bargain froma property rule into a liability rule. Collective rights organizations thusplay a valuable role in facilitating transactions in intellectual propertyrights.There is another sort of organization that mediates between intellectualproperty owners and users, however. Standard-setting organizations (SSOs)regularly encounter situations in which one or more companies claim to ownproprietary rights that cover a proposed industry standard. The industrycannot adopt the standard without the permission of the intellectualproperty owner (or owners).How SSOs respond to those who assert intellectual property rights iscritically important. Whether or not private companies retain intellectualproperty rights in group standards will determine whether a standard is"open" or "closed." It will determine who can sell compliant products, andit may well influence whether the standard adopted in the market is onechosen by a group or one offered by a single company. SSO rules governingintellectual property rights will also affect how standards change astechnology improves.Given the importance of SSO rules governing intellectual property rights,there has been surprisingly little treatment of SSO intellectual propertyrules in the legal literature. My aim in this article is to fill that void.To do so, I have studied the intellectual property policies of dozens ofSSOs, primarily but not exclusively in the computer networking andtelecommunications industries. This is no accident; interface standards aremuch more prevalent in those industries than in other fields. In Part I, Iprovide some background on SSOs themselves, and discuss the value of groupstandard setting in network markets. In Part II, I discuss my empiricalresearch, which demonstrates a remarkable diversity among SSOs even withina given industry in how they treat intellectual property. In Part III, Ianalyze a host of unresolved contract and intellectual property law issuesrelating to the applicability and enforcement of such intellectual propertypolicies. In Part IV, I consider the constraints the antitrust laws placeon SSOs in general, and on their adoption of intellectual property policiesin particular. Part V offers a theory of SSO intellectual property rules asa sort of messy private ordering, allowing companies to bargain in theshadow of patent law in those industries in which it is most important thatthey do so. Finally, in Part VI I offer ideas for how the law can improvethe efficiency of this private ordering process.In the end, I hope to convince the reader of four things. First, SSO rulesgoverning intellectual property fundamentally change the way in which wemust approach the study of intellectual property. It is not enough toconsider IP rights in a vacuum; we must consider them as they are actuallyused in practice. And that means considering how SSO rules affect IPincentives in different industries. Second, there is a remarkable diversityamong SSOs in how they treat IP rights. This diversity is largelyaccidental, and does not reflect conscious competition between differentpolicies. Third, the law is not well designed to take account of the modernrole of SSOs. Antitrust rules may unduly restrict SSOs even when thoseorganizations are serving procompetitive ends. And enforcement of SSO IPrules presents a number of important but unresolved problems of contractand intellectual property law, issues that will need to be resolved if SSOIP rules are to fulfill their promise of solving patent holdup problems.My fourth conclusion is an optimistic one. SSOs are a species of privateordering that may help solve one of the fundamental dilemmas ofintellectual property law: the fact that intellectual property rights seemto promote innovation in some industries but harm innovation in others.SSOs may serve to ameliorate the problems of overlapping intellectualproperty rights in those industries in which IP is most problematic forinnovation, particularly in the semiconductor, software, andtelecommunications fields. The best thing the government can do is toenforce these private ordering agreements and avoid unduly restricting SSOsby overzealous antitrust scrutiny.

The rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

Chapter 7 Intellectual Property Rights and Competition Policy

Dominant digital platforms in Indonesia control strategic assets in the form of massive user data and search/recommendation algorithms that serve as market access gateways. Exclusive control over these assets creates barriers to entry and forecloses competitors in the digital ecosystem. The Essential Facilities Doctrine (EFD), traditionally applied to physical infrastructure such as ports and telecommunications networks, offers a legal framework for identifying when control over digital assets can be qualified as abuse of dominance requiring access sharing with competitors. This article doctrinally examines whether and how EFD can be applied to non-personal data and algorithms under Article 25 of Law No. 5 of 1999, and explores synchronization with Law No. 27 of 2022 on Personal Data Protection, particularly regarding data portability. The research employs a library-based approach with doctrinal-normative analysis of Law No. 5/1999 and the Data Protection Law, conceptual analysis to develop criteria for "digital essential facilities," and comparative doctrinal analysis of EFD application in the European Union and United States. Findings demonstrate that data and algorithms can be qualified as essential facilities if they cumulatively meet four criteria: (1) controlled by a dominant undertaking; (2) cannot be economically and technically duplicated; (3) access is essential for competing in downstream markets; and (4) no objective justification exists for refusing access. The article recommends that KPPU develop specific guidelines on data and algorithm access, considering efficiency defense, intellectual property rights, and privacy protection. The proposed framework balances competition enforcement with innovation incentives and clarifies when data-sharing obligations arise under Indonesian competition law without requiring legislative amendment.