Tuesday, June 3, 2008
Posted by D. Daniel Sokol
Estelle Derclaye, University of Nottingham - School of Law, has posted a paper on Compulsory Access to Intellectual Property and Network Facilities.
ABSTRACT: One of the questions that this Congress addresses concerns an important relationship between competition law and intellectual property rights, namely the refusal to licence an intellectual property right such as a patent, trade mark, design or copyright and the correlative power of the competition authorities and courts to order compulsory access to such intellectual property. Such refusals are prohibited only if the undertaking abuses a dominant position. This report analyses how Belgian law tackles this question. As Belgian law is very sparse on the topic, to the extent possible, the report will make comparisons with the solutions adopted concerning the corresponding relationship between competition law and tangible property. To this effect, the report first sets out the Belgian legal framework (section 1), then reviews the case law relating to refusals to licence (section 2) and finally to refusals to supply and buy (section 3). In light of this analysis, the report then provides answers to the questions asked by the International Rapporteur (section 4) after which a conclusion is drawn.