What IP owes to antitrust – and which IP paradigm is required to foster innovation and creativity in the digital era

Abstract

The Essential Facilities (EF) doctrine meant that the ‘interference’ of antitrust principles on intellectual property regimes progressively made room for third parties to access IPR-protected intangibles, inventions, and software products in particular. A substantial step indeed against the ‘monopolization’ of top-notch, ‘non-substitutable’ innovation. But the objective limits of the applicability of said doctrine appear nowadays too strict vis-à-vis the necessities of the technical mode of production of digital innovation, AI first and foremost. A proposal for a new IP paradigm is submitted – one that could reconcile said necessities with the legitimate interests to an adequate compensation of authors of (utilitarian or ‘intellectual’) digital works.