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Abstract
This paper introduces an ‘infrastructural approach’ to the problems of de facto and cooperative standard-setting in high technology. It reviews recent case law in the area, and attempts to provide robust economic arguments for the maintenance of ‘open access’ rules over such standards. First, it begins by qualifying such resources as technological ‘infrastructure’ according to the work of Brett Frischmann and Peter Lee. Subsequently, game theoretical tools are applied to the problem of cooperative standard-setting to demonstrate how the ‘quasi-open access’ FRAND commitment can constrain strategic behaviour. A legal analysis—including an examination of recent case law about the availability of injunctions—then follows to demonstrate the optimal ‘negotiation framework’ for the latter commitment to become credible. Finally, the infrastructural approach is expanded to demonstrate how it can elucidate a number of current controversies in high technology markets, where the tension between private ownership and public use of technological infrastructure is at its sharpest.
Highlights
At the core of today’s high technology markets are networks, both real and virtual.[1]
Section B deals with the related question of why cooperative standard setting generally requires ex ante FRAND commitments in order to be successful. Once these strategic aspects of cooperative standard-setting and FRAND commitments have been explained, Section C will look into FRAND as a ‘creature’ of law, including how its legal form attempts to make its status as a commitment ‘credible.’
Consideration of these issues is the purpose of Part IV, which shall begin by an analysis of the recent Court of Justice of the European Union (CJEU) and commission decisions (Section A), before turning to analyse the FRAND bargaining ‘dynamics’ under property and liability rules (Section B)
Summary
At the core of today’s high technology markets are networks, both real and virtual.[1]. Part V is integrative, and attempts to synthesise the legal approaches adopted by the European Courts with respect to de facto and de jure standards and demonstrate that they form part of a single concern to apply an open access rule to technological infrastructure, allowing producers, consumers and society in general to benefit from the ‘synergies’ and network spillovers which may result (Part V, Section A).
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