Introduction
Intellectual property and competition policy both are attached by their nature. But sometimes the clash also happens between these two IPR and Competition Law. Fair competition among the market economy becomes the motive of competition policy.
In common parlance, there is maintaining a balance in the IPR and Competition policies to reach the desire of market triumph and the consumer’s prosperity. It is not intended to create restrictions or constrictions that may be harmful to the growth of society. the main intention is to avoid the market predominance by different modes such as price-fixing or market sharing cartels. Shortly, the Competition law omits the monopoly but the IPR invent and maintain the monopoly on a whole global basis.
Either the relations of Intellectual Property and Competition Law are in a tussle or balanced on each other, becomes my discussion topic, let’s have a look at it.
Objectives of the study:
Intellectual property rights and Competition Law both are connected historically by their various aspects. Competition law deals with mainly to defend the anti-competitive culture among the market and the other aimed to cherish innovation by protecting client’s welfare.
Intellectual property:
Intellectual property rights are designed to promote the creation of innovations and to promote economic advance and consumer welfare. It’s a profit that serves both to reward the innovator for his investment and to induce others to strive to innovate in the future.
Competition policy:
- The main motto of Competition Policy is-
- to prevent market monopoly.
- promote consumer welfare by removing obstacles and helping efficient functioning of markets.
It is executed by preventing firms from gaining market power in unjustified ways, e.g., through anticompetitive mergers with competitors, and by preventing firms with market power from abusing their dominant positions.
Intellectual property rights and Competition Act, 2002:
In 1948, the US Supreme Court has held that the anti-trust law and patent law in IPR are co-existed by their nature in the field. ‘Preserve the innovations’ of the innovator is the main aim of IPR where the structure of innovations gave birth to the private monopoly power for a short period of 20 years as mentioned in the TRIPs Agreement.
The nature of Competition law lies in the market efficiency and prevent market abnormality. So, the tension between these two is existed as
IPR is so careful about monopoly rights, whereas the Competition policies are against the monopoly.
But the market monopoly is not against the competition policy but in the case of abusive monopoly attitude, the anti-competitive manner has been raised.
Application of sec- 3 of the Competition Act and IPR:
The Indian competition law, i.e., the Competition Act 2002, sec-3 deals with that, the provisions relating to anti-competitive agreements of IPRs, any association cannot enter into an agreement that becomes the reason for opposite effects on the competition.
Section.3(5) specified that reasonable conditions are necessary for protecting IPR during their exercise which, would not build up anti-competitive agreements.
Section3 (5) (i) of the act provides, no bar, conditions, restrictions have been imposed on the rights of an innovator, and protects any of his rights under these acts-
(a) The Copyright Act 1957;
(b) The Patents Act 1970;
(c) The Trade and Merchandise Marks Act1958or the Trade Marks Act1999;
(d) The Geographical Indications of Goods (Registration and Protection) Act 1999;
(e) The Designs Act 2000;
(f) The Semi-conductor Integrated Circuits Layout-Design Act 2000
The CCI (Competition Commission of India) has analyzed certain cases for clearing out the difference between competition law and nuances of intellectual property.
In the film industry, there have been arising copyright issues with anti-competitive practices. In the case of FCCI Multiplex Association of India v. United Producers/Distributors Forum (UPDF), where, the CCI’s decision was, it tried to end the abuse of dominance of association in the film industry. It is, therefore, clear that greater protection ought to be accorded to original artistic works related to the cinema rather than its commercial interests.
Common aim: different perspectives:
IPR protection indeed received a great deal of attention in the technologically advanced. Competition law is also making a strong root under the legal-technological world. The IPR and Competition policy are deemed to be the two sides of the one coin. It means equal intents are present, from the different aspects and manners.
According to the competition viewpoint, IPR lesser the competition since intellectual property grant the rights to the inventor, by creating monopolies in the market economy.
Also, IPR may use as a weapon to restrict competition between licensees of a particular product. It explained that competition law and IP law have equal economic objectives.
The Competition policy of India provides that, all-intellectual property types are dynamic that they can break the competition. The Competition Commission of India (CCI) can deal with the IPR issues, which the court also declared in a judgment. The CCI can settle the constitutional, legal issues.
in the case of Amir Khan Productions Private Limited v. Union of India, 2010; it was decided by the court that, the CCI is holding the power to dealing the issues of intellectual property.
Almost the 100 countries in the world established the competition law. Few laws originated from the early period, as like, the Sherman Anti-Trust Act was enacted by the US in 1890, etc. the European Union’s competition rules were performed by the adoption of the Treaty of Rome in 1957. Later, the Competition Act, 2002 was enacted in India to cope up with new policies. After that, this act was amended in 2007 and finally in 2009 again this act has amended and formed the Competition (Amendment) Act, 2009.
So, from the above discussion, we can see that Intellectual property rights create monopolies, but competition law battles with the monopolies.
The recent crisis of vaccine: Intellectual Property Rights and Competition Law
We are undergoing a very difficult crisis of the COVID-19 pandemic. India is standing in 1st rank as the most affected and rising number of death country.
At the time of availability of the vaccine, rich developed countries did not deal with the IP waivers for the under-developed countries, in fact in case of public money too. The other countries are already contributing the kind of vaccine in India, but still, its percentage is not fulfilling the average population.
Under the Indian Patent Act, 1970, it provides that in the National Emergency this act permitted to issued CL-Compulsory Licence for patented drugs.in 2011 to cure kidney and liver cancer India has granted the CL for drugs for the sake of the surviving patients.
Next in this May 2021 year, the condition is very serious. So, the argument regarding the accessibility of vaccines already is started for preserving the IP system.
At the time of granting compulsory licensing the aspects of Competition Law have entered. Many are debated that, many organizations, firms are the provider of covid vaccine such as- Covishield, Covaxin, Sputnik V, so there have no particular firm works as a dominance.
As market demand is so high, the competition rate also getting higher. A sturdy market demand supersedes supply, then the firms do not oblige to each other’s pricing rate. But when any one of the vaccine producers claimed so high rate, then compulsory licensing becomes one important topic to add on.
Suggestion:
Lastly, I have few suggestions such are as follows:
- The concept of the abuse of IPR must be defined by the Indian legislature. An exhaustive definition is not possible however, guidelines may be laid out.
- Refusal to license on unreasonable and unjustifiable grounds and tying arrangements must be dealt with strongly by the CCI.
- Section 4 of the Competition Act may be amended to include high prices as an abuse of dominant position.
Conclusion:
India is emerging as a prolific ground for discussions on the topic of Intellectual Property Rights versus Competition Law. The roots of Indian Law on the competition can be traced back to Articles 38 and 39 of the Constitution deals with the duty of the State to secure and protect the social order in which social, political, and economic justice is existed and also should protect the public will.
I can conclude it by this way, we must have knowledge where both Intellectual Property Rights and Competition Law are imperative in a country’s legal area and are here to stay. They are meant to complement each other and serve a common purpose of innovation, consumer welfare, and market efficiency.
