promoting access to knowledge through un guidelines for consumer protection and the un code for the...

Promoting access to knowledge through UN Promoting access to knowledge through UN Guidelines for consumer protection and the UN Guidelines for consumer protection and the UN

Code for the control of RBPs, Code for the control of RBPs,

Tuesday 3 May, 2011Tuesday 3 May, 2011

Hassan QaqayaHassan QaqayaHeadHead

Competition law and Consumer policies BranchCompetition law and Consumer policies BranchUNCTADUNCTAD

What is meant by access to What is meant by access to knowledge?knowledge?

– "The principle of access to knowledge argues that we "The principle of access to knowledge argues that we best serve human rights and economic development best serve human rights and economic development through policies that make knowledge, knowledge-through policies that make knowledge, knowledge-creating tools and knowledge embedded goods as creating tools and knowledge embedded goods as widely available as possible for decentralized innovation widely available as possible for decentralized innovation and use. Open technology standards, a balanced and use. Open technology standards, a balanced approach to intellectual property rights, and expansion approach to intellectual property rights, and expansion of an open telecommunications infrastructure enable of an open telecommunications infrastructure enable ordinary people to benefit from technological advances ordinary people to benefit from technological advances of the information age and allow them to generate a of the information age and allow them to generate a vibrant, participatory and democratic culture." vibrant, participatory and democratic culture." Jack Jack Balkin, Director, Information Society Project, Yale UniversityBalkin, Director, Information Society Project, Yale University

What is meant by access to What is meant by access to knowledge?knowledge?

Access is also broad and pertains Access is also broad and pertains not only to the right to access the not only to the right to access the products referred above but also the products referred above but also the right to participate as producers in right to participate as producers in their creation, manipulation and their creation, manipulation and extension.extension.

What is the link between law and What is the link between law and A2K?A2K?

– No area of law has a more pervasive impact on access No area of law has a more pervasive impact on access to knowledge than intellectual property. IP law can to knowledge than intellectual property. IP law can dramatically affect the government ability to provide dramatically affect the government ability to provide public goods-ranging from health care to education public goods-ranging from health care to education etc...etc...

– IP has also important implications for market IP has also important implications for market competition; more open approaches may favor small competition; more open approaches may favor small entrepreneurs offering new products and services.entrepreneurs offering new products and services.

– – IP regulation has strong implications for freedom of IP regulation has strong implications for freedom of

expression, democratic and cultural freedomexpression, democratic and cultural freedom

Why focus on IP and A2K ?Why focus on IP and A2K ?

– The aim of intellectual property protection is to The aim of intellectual property protection is to encourage invention and original creation, and through encourage invention and original creation, and through the intervention of law, to guarantee the rights-holder a the intervention of law, to guarantee the rights-holder a specific period of exclusive rights. specific period of exclusive rights.

– The Patent Law is intended to encourage, protect, and The Patent Law is intended to encourage, protect, and utilize inventions and innovations in order to facilitate utilize inventions and innovations in order to facilitate the development of commerce.the development of commerce.

– Patent Laws provide rights based on the first-to-file rule, Patent Laws provide rights based on the first-to-file rule, and distinguish between invention patents, new utility and distinguish between invention patents, new utility model patents and new design patents;model patents and new design patents;

Why focus on IP and A2K ?Why focus on IP and A2K ?

Copyright Law is intended to protect the rights Copyright Law is intended to protect the rights of the copyright and adopts the principle of of the copyright and adopts the principle of original authorship,original authorship,

Outlines the scope of rights, extension of Outlines the scope of rights, extension of copyright terms and their limitation, and copyright terms and their limitation, and Protect rights through elimination of infringing Protect rights through elimination of infringing activity, and provide for payment of damages activity, and provide for payment of damages and civil responsibilityand civil responsibility

How do competition and consumer How do competition and consumer protection laws interface with A2K?protection laws interface with A2K?

– The main objective of competition law is to maintain the The main objective of competition law is to maintain the freedom and the competitive functions of the market, allowing freedom and the competitive functions of the market, allowing competition to bring about the most appropriate allocation of competition to bring about the most appropriate allocation of economic resources;economic resources;

– Competition is the basic rule of the game in a market Competition is the basic rule of the game in a market economy. Nevertheless, if the outcome of competition is to be economy. Nevertheless, if the outcome of competition is to be accepted by the society at large, the process of competition accepted by the society at large, the process of competition itself must not only be free but also conform to a social norm itself must not only be free but also conform to a social norm and be fair. i.e. rests, on inter alia, on equitable opportunities and be fair. i.e. rests, on inter alia, on equitable opportunities and transparent and fair application of rules and transparent and fair application of rules

– Viewed from this perspective, the polemic whether Viewed from this perspective, the polemic whether competition laws should aim only at enhancing economic competition laws should aim only at enhancing economic efficiency rather than at promoting some social policy goals efficiency rather than at promoting some social policy goals such as fairness may appear to be irrelevantsuch as fairness may appear to be irrelevant

Tensions between IP and Tensions between IP and Competition and consumer Competition and consumer

protection lawsprotection laws On the surface, competition law and intellectual property law On the surface, competition law and intellectual property law

would seem to be in conflict; however, the functions of both have would seem to be in conflict; however, the functions of both have to do with providing extra protection from the standpoint of to do with providing extra protection from the standpoint of maintaining market mechanisms.maintaining market mechanisms.

Thus, when competition laws and trademark laws, patent laws, Thus, when competition laws and trademark laws, patent laws, and copyright laws overlap in terms of protection, there is no and copyright laws overlap in terms of protection, there is no question of mutual exclusion, but only one of mutual delineation question of mutual exclusion, but only one of mutual delineation of respective regulatory objectives and their scope of applicability of respective regulatory objectives and their scope of applicability within the system.within the system.

In cases of conflict between competition and patents laws, Courts In cases of conflict between competition and patents laws, Courts often frame the legal analysis in terms of whether it is within the often frame the legal analysis in terms of whether it is within the “scope of the patent” and contributes to the “reward which the “scope of the patent” and contributes to the “reward which the patentee by the grant of the patent is entitled to secure” or is patentee by the grant of the patent is entitled to secure” or is outside the scope of the grant and by its “very nature illegal.”outside the scope of the grant and by its “very nature illegal.”

Complementarities and gaps in Complementarities and gaps in competition and consumer laws: competition and consumer laws:

Competition law and enforcement does not necessarily and Competition law and enforcement does not necessarily and in all cases lead to a benefit to consumers or consumer in all cases lead to a benefit to consumers or consumer welfare. It may be that competition enforcement will have to welfare. It may be that competition enforcement will have to address more directly (and possibly become more address more directly (and possibly become more conditional upon) harm to consumers: conditional upon) harm to consumers:

A more consumer-focused competition law may need to A more consumer-focused competition law may need to consider more explicitly harm to consumers, as compared consider more explicitly harm to consumers, as compared to harm to competition. to harm to competition.

The effect on consumer is an important factor in The effect on consumer is an important factor in assessments of the anticompetitive effects of a practice: assessments of the anticompetitive effects of a practice: high benefits to consumer may justify otherwise high benefits to consumer may justify otherwise anticompetitive conductanticompetitive conduct

and therefore the absence of harm to consumers may be a and therefore the absence of harm to consumers may be a necessary factor to the absence of competition law necessary factor to the absence of competition law enforcement. Equally, however, the absence of harm to enforcement. Equally, however, the absence of harm to consumers will not excuse anticompetitive conduct.consumers will not excuse anticompetitive conduct.

Complementarities and gaps in Complementarities and gaps in competition and consumer laws:competition and consumer laws:

While the role of the consumer is central to the definition of the While the role of the consumer is central to the definition of the relevant market and the determination of dominance, the effect relevant market and the determination of dominance, the effect of conduct on consumers is not traditionally directly considered of conduct on consumers is not traditionally directly considered in competition enforcement. in competition enforcement.

Harm to consumers is not necessary to a finding of anti-Harm to consumers is not necessary to a finding of anti-competitive conduct; the absence of harm to consumers in itself competitive conduct; the absence of harm to consumers in itself will not exempt anticompetitive conduct, in the absence of a will not exempt anticompetitive conduct, in the absence of a clear benefit. In most cases, harm to consumers is presumed clear benefit. In most cases, harm to consumers is presumed from harm to the competitive process. from harm to the competitive process.

Moreover, it is possible that the strengthening of the consumer Moreover, it is possible that the strengthening of the consumer will lead to substantive changes within competition laws: for will lead to substantive changes within competition laws: for example consumer detriment in itself may trigger findings of example consumer detriment in itself may trigger findings of competition violation, whereby harm to competition and/or competition violation, whereby harm to competition and/or efficiencies to competition will be presumed from harm to/ efficiencies to competition will be presumed from harm to/ benefits to consumers correspondingly. benefits to consumers correspondingly.

The UN guidelines for consumer The UN guidelines for consumer protectionprotection

– The idea for elaborating the UN Guidelines originated in the late 1970s when The idea for elaborating the UN Guidelines originated in the late 1970s when ECOSOC recognized the strong linkages between consumer protection and ECOSOC recognized the strong linkages between consumer protection and economic and social developmenteconomic and social development

– They were adopted by consensus by the UN General Assembly on 9 April, 1985 They were adopted by consensus by the UN General Assembly on 9 April, 1985 and revised at the request of the UN Economic and Social Council (ECOSOC) in and revised at the request of the UN Economic and Social Council (ECOSOC) in 1995 in order to include aspects of sustainable consumption patterns and 1995 in order to include aspects of sustainable consumption patterns and environmental concerns.environmental concerns.

– The Guidelines were further revised by the "Inter-Regional Expert Group The Guidelines were further revised by the "Inter-Regional Expert Group Meeting on the extension of the UN Guidelines on Consumer Protection", held Meeting on the extension of the UN Guidelines on Consumer Protection", held on 28-30 January 1998, endorsed by the Economic and Social Council in July on 28-30 January 1998, endorsed by the Economic and Social Council in July 1999 and adopted by the General Assembly in its decision 54/449 in the same 1999 and adopted by the General Assembly in its decision 54/449 in the same year.year.

– The previous extensions of the Guidelines to include sustainable consumption The previous extensions of the Guidelines to include sustainable consumption prove that the Guidelines are a dynamic process, adapting to changing prove that the Guidelines are a dynamic process, adapting to changing conditions. Future extensions to cover access to knowledge will reinforce the conditions. Future extensions to cover access to knowledge will reinforce the role of the UN Guidelines.role of the UN Guidelines.

Some background information on the UN Code Some background information on the UN Code for the control of RBPs “the UN Set”for the control of RBPs “the UN Set”

Adopted on 5 December 1980 by the General Adopted on 5 December 1980 by the General Assembly of the UN on the basis of the work of the Assembly of the UN on the basis of the work of the United Nations Conference on Restrictive Business United Nations Conference on Restrictive Business Practices;Practices;

Provides a set of equitable rules for the control of Provides a set of equitable rules for the control of anti-competitive practices addressed to companies anti-competitive practices addressed to companies and states;and states;

Recognizes the development dimension of Recognizes the development dimension of competition law and policy; andcompetition law and policy; and

Provides a framework for international cooperation Provides a framework for international cooperation and exchange of best practices. and exchange of best practices.

Development perspective of the SetDevelopment perspective of the Set Contribution to economic development among the Set‘s objectives;Contribution to economic development among the Set‘s objectives; Emphasis on the negative impact of restrictive business practices on Emphasis on the negative impact of restrictive business practices on

developing countries; developing countries; Preferential or differential treatment among the multilaterally agreed Preferential or differential treatment among the multilaterally agreed

equitable principles in Section C of the Set;equitable principles in Section C of the Set; Objective 3 of the Set “Objective 3 of the Set “To protect and promote social welfare in

general and, in particular, the interests of consumers in both developed and developing countries;”

Sharing of experience and technical assistance encouraged by the Sharing of experience and technical assistance encouraged by the Set: Set:

„„States with greater expertise in the operation of systems for the control of States with greater expertise in the operation of systems for the control of restrictive business practices should, on request, share their experience restrictive business practices should, on request, share their experience with, or otherwise provide technical assistance to other States wishing to with, or otherwise provide technical assistance to other States wishing to develop or improve such systems. (Section E 8. of the Set)develop or improve such systems. (Section E 8. of the Set)

Cooperation under the SetCooperation under the Set

International measures under International measures under Section FSection F

– Work aimed at common Work aimed at common approaches in the field of approaches in the field of competition law and policycompetition law and policy

– Reporting to SG of UNCTADReporting to SG of UNCTAD– Annual publication of report by Annual publication of report by

UNCTADUNCTAD– Case specific consultations Case specific consultations

foreseen (to date consultation foreseen (to date consultation mechanism has not been mechanism has not been applied)applied)

Institutional arrangements under Institutional arrangements under Section GSection G

– Intergovernmental Group of Intergovernmental Group of Experts on Competition Law Experts on Competition Law and Policy (IGE)and Policy (IGE)

– IGE functions as forum for IGE functions as forum for information exchange and information exchange and mutual learningmutual learning

– IGE to undertake and IGE to undertake and disseminate studies in the field disseminate studies in the field of competition law and policyof competition law and policy

How can the UN guidelines and the How can the UN guidelines and the UN Set address the treats to A2K by UN Set address the treats to A2K by

IP abuse ? IP abuse ?

Revise the UN Guidelines on consumer protection;Revise the UN Guidelines on consumer protection; Promote the application of commitments made in the UN Promote the application of commitments made in the UN

Set on regional and international cooperation in case Set on regional and international cooperation in case specific enforcement of competition and consumer specific enforcement of competition and consumer protection rules;protection rules;

Integrate IPR in national competition and development Integrate IPR in national competition and development policies and programs; policies and programs;

Promote a A2K culture including in issues relating a Promote a A2K culture including in issues relating a balanced protection and use of IPR;balanced protection and use of IPR;

Engage the judiciary in a dialogue on A2K.Engage the judiciary in a dialogue on A2K.

How can the UN guidelines and the How can the UN guidelines and the UN Set address the treats to A2K by UN Set address the treats to A2K by

IP abuse ?IP abuse ?

Competition law can be used to limit intellectual property rights, Competition law can be used to limit intellectual property rights, including prohibiting refusals to license others. Thus, the key including prohibiting refusals to license others. Thus, the key question is when competition law should limit intellectual question is when competition law should limit intellectual property rights. property rights.

Professor Louis Kaplow, for example argues that the use Professor Louis Kaplow, for example argues that the use competition law to regulate a particular practice should be by competition law to regulate a particular practice should be by reference to the net benefit or harm to society that the restrictive reference to the net benefit or harm to society that the restrictive practice is causing.practice is causing.

The costs of a restrictive practice may be limited access to the The costs of a restrictive practice may be limited access to the existing technology, as well as other dynamic costs from limiting existing technology, as well as other dynamic costs from limiting the diffu sion of information and erecting barriers to follow-on the diffu sion of information and erecting barriers to follow-on innovation. innovation.

How can the threats to A2K by IP How can the threats to A2K by IP abuse be handled? abuse be handled?

The leading treatise on intellectual The leading treatise on intellectual property law and competition in the property law and competition in the United States describes the question United States describes the question as calling for “balancing the social as calling for “balancing the social benefit of providing economic benefit of providing economic incentives for creation and the costs incentives for creation and the costs of limiting diffusion of knowledge.” of limiting diffusion of knowledge.”

Why resort to competition agencies Why resort to competition agencies and Courts? and Courts?

Resort to competition tribunals shifts the discourse back to Resort to competition tribunals shifts the discourse back to the monopoly frame, where consumers hold an advantage;the monopoly frame, where consumers hold an advantage;

Monopolies are synonymous with exploitation and abuse. Monopolies are synonymous with exploitation and abuse. Monopolies are entities to be regulated, not freed from Monopolies are entities to be regulated, not freed from state intervention;state intervention;

The decisions of competition courts and commissions may The decisions of competition courts and commissions may have a lasting precedential effect, altering the legal have a lasting precedential effect, altering the legal background in the industrybackground in the industry ; ;

Another advantage of using competition law is that it is Another advantage of using competition law is that it is punitive. Using competition laws shifts the question from punitive. Using competition laws shifts the question from whether the government should use its discretion to limit whether the government should use its discretion to limit patent rents to whether the company deserves punishment patent rents to whether the company deserves punishment for its abusive actions.for its abusive actions.


In a several cases dealing with the ownership of unique In a several cases dealing with the ownership of unique infrastructure resources that are necessary for competition, infrastructure resources that are necessary for competition, courts have formulated the “essential facilities doctrine.” courts have formulated the “essential facilities doctrine.”

This doctrine orders companies to share “access to their This doctrine orders companies to share “access to their unique facilities, even to com petitors, on a unique facilities, even to com petitors, on a nondiscriminatory basis where sharing is feasible and the nondiscriminatory basis where sharing is feasible and the competi tors cannot obtain or create the facility on their competi tors cannot obtain or create the facility on their own.”own.”

U.S. and European courts have begun applying this U.S. and European courts have begun applying this doctrine to refusals of intellectual property owners to doctrine to refusals of intellectual property owners to license their rights in special cases.license their rights in special cases.


U.S. and European courts have begun applying this doctrine to refusals U.S. and European courts have begun applying this doctrine to refusals of intellectual property owners to license their rights in special cases ;of intellectual property owners to license their rights in special cases ;

For example, European courts ordered compulsory licensing of a For example, European courts ordered compulsory licensing of a copyrighted data tool that had become an industry standard and that copyrighted data tool that had become an industry standard and that prevented any other firm from compet ing in the same market;prevented any other firm from compet ing in the same market;

In EC, legal limits on the refusal to license in intellectual property In EC, legal limits on the refusal to license in intellectual property matters are relatively well established. In matters are relatively well established. In Magill CASEMagill CASE, three television , three television broadcasters held copyrights on their respective listings for broadcasts broadcasters held copyrights on their respective listings for broadcasts in Ireland and refused to give permission for any firm to produce a in Ireland and refused to give permission for any firm to produce a comprehensive weekly guide combining the listings.comprehensive weekly guide combining the listings.

European courts struck down the refusal to license, holding that the European courts struck down the refusal to license, holding that the exclusion justified compulsory licensing because it prevented “the exclusion justified compulsory licensing because it prevented “the appearance of a new product . . . which the appellants did not offer and appearance of a new product . . . which the appellants did not offer and for which there was a potential consumer demand.” for which there was a potential consumer demand.”


A number of US courts have also concluded that a A number of US courts have also concluded that a refusal to license intellectual property may violate refusal to license intellectual property may violate antitrust law where the refusal does not sufficiently antitrust law where the refusal does not sufficiently serve the purposes of intellectual property law in serve the purposes of intellectual property law in promoting new creation or innovation.promoting new creation or innovation.

Yet an important appellate court for patent law has Yet an important appellate court for patent law has held that such theories may not be pursued and that held that such theories may not be pursued and that courts instead are restricted to regulating practices courts instead are restricted to regulating practices that lie outside of the core right to exclude granted by that lie outside of the core right to exclude granted by the patent the patent

Why Public interest criteria ?Why Public interest criteria ?

The costs of a restrictive practice may be limited access to the The costs of a restrictive practice may be limited access to the existing technology, as well as other dynamic costs from limiting the existing technology, as well as other dynamic costs from limiting the diffusion of information and erecting barriers to follow-on diffusion of information and erecting barriers to follow-on innovation.innovation.

Recent experiences in developing countries show this: The more unequal Recent experiences in developing countries show this: The more unequal the distribution of income is in a country, the more people will be excluded the distribution of income is in a country, the more people will be excluded from the market (“dead weight loss”) when a monopoly prevail in a market from the market (“dead weight loss”) when a monopoly prevail in a market for an essential good. for an essential good.

At the same time, because sales in such a country are likely to be so few At the same time, because sales in such a country are likely to be so few (making sales only to the very top income earners), the monopoly does (making sales only to the very top income earners), the monopoly does not enjoy very high levels of overall profits. In other words, in countries not enjoy very high levels of overall profits. In other words, in countries with high income inequality, unrestrained monopoly pricing of essential with high income inequality, unrestrained monopoly pricing of essential goods is very likely to cause large social harms and comparatively small goods is very likely to cause large social harms and comparatively small incentives to invest in innova tive activitiesincentives to invest in innova tive activities

Enforcement ChallengesEnforcement Challenges

Almost all Competition laws in developing countries Almost all Competition laws in developing countries explicitly incorporate develop mental objectives and explicitly incorporate develop mental objectives and decisions to consider equity objectives in the decisions to consider equity objectives in the interpretation and enforcement of competition law may interpretation and enforcement of competition law may be heightened in countries that have adopted social be heightened in countries that have adopted social and economic rights in their constitutions.and economic rights in their constitutions.

Effective enforcement calls for the introduction of Public Effective enforcement calls for the introduction of Public interest criteria in evaluating potential abuse of IP under interest criteria in evaluating potential abuse of IP under competition lawcompetition law


Prior to the adoption of TRIPS Agreement imposing minimum Prior to the adoption of TRIPS Agreement imposing minimum standards on intellectual property laws and terms, countries could standards on intellectual property laws and terms, countries could respond to a situation where the costs of intellectual property respond to a situation where the costs of intellectual property restrictions far exceeded their benefits by shortening the term of restrictions far exceeded their benefits by shortening the term of years or by doing away with intellectual property in the particular years or by doing away with intellectual property in the particular field of technology. Those options are no longer available to WTO field of technology. Those options are no longer available to WTO members, who must grant intellectual property members, who must grant intellectual property

Although there are more than 110 competition laws worldwide, Although there are more than 110 competition laws worldwide, there is no uniformity. Unlike in intellectual property law, where there is no uniformity. Unlike in intellectual property law, where binding minimum standards are established by the TRIPS binding minimum standards are established by the TRIPS Agreement, in competition law, countries remain largely free from Agreement, in competition law, countries remain largely free from any international obligation to draft, interpret, and enforce any international obligation to draft, interpret, and enforce standards in any particular manner.standards in any particular manner.


Claims that a right holder has engaged in anticompetitive Claims that a right holder has engaged in anticompetitive conduct is often complex and require significant judicial conduct is often complex and require significant judicial and legal expertise in their interpretation.and legal expertise in their interpretation.

Competition authorities in developing countries must Competition authorities in developing countries must develop capabilities to distinguish various forms of develop capabilities to distinguish various forms of behaviors and potential impacts on static and dynamic behaviors and potential impacts on static and dynamic

competition.competition.


Under competition law, conduct is evaluated under the Under competition law, conduct is evaluated under the per se rule or the ‘rule of reason’, depending on the per se rule or the ‘rule of reason’, depending on the Conduct. Competition agencies have found conduct per Conduct. Competition agencies have found conduct per se unlawful (presumed anti-competitive) where licensing se unlawful (presumed anti-competitive) where licensing of intellectual property was really a pretext for a market of intellectual property was really a pretext for a market allocation scheme, or when an intellectual property allocation scheme, or when an intellectual property holder tied the sale of one product to a product protected holder tied the sale of one product to a product protected by an intellectual property right. But, the vast majority of by an intellectual property right. But, the vast majority of competition cases in which intellectual property is competition cases in which intellectual property is involved have been analyzed under the ‘rule of reason’. involved have been analyzed under the ‘rule of reason’.


When evaluating a conduct involving an IPR When evaluating a conduct involving an IPR under the ‘rule of reason’, the challenge is how under the ‘rule of reason’, the challenge is how define the relevant market in which the IP define the relevant market in which the IP competes ? then assess whether it possesses competes ? then assess whether it possesses monopoly or market power. monopoly or market power.

Furthermore when intellectual property is Furthermore when intellectual property is involved, markets also can be characterized as involved, markets also can be characterized as ‘technology’ or ‘innovation’ markets. ‘technology’ or ‘innovation’ markets.


I. I. Pricing in developing countries is a major issue;Pricing in developing countries is a major issue;

II. Exclusionary effects of licensing agreements;II. Exclusionary effects of licensing agreements;

II. Attempts to acquire power beyond firms own II. Attempts to acquire power beyond firms own protected technology or products by purchasing protected technology or products by purchasing exclusive rights to technology or productsexclusive rights to technology or products


Exclusive licensing;Exclusive licensing; Refusals to license;Refusals to license; Tying;Tying; Patent pooling;Patent pooling; Exclusive dealing;Exclusive dealing; Grant back ;Grant back ; Standard setting;Standard setting;

The role of GovernmentThe role of Government Equally important in some developing countries where Equally important in some developing countries where

entry is made difficult by protected monopolies, entry is made difficult by protected monopolies,

exclusive distribution laws, restriction on trade and exclusive distribution laws, restriction on trade and

investment, anti-competitive exploitation of IPR could investment, anti-competitive exploitation of IPR could

be particularly problematic. The remedy is not a blanket be particularly problematic. The remedy is not a blanket

check for IPR but to strengthen competition institutions check for IPR but to strengthen competition institutions

and strike a balance between IPR protection and the and strike a balance between IPR protection and the

control of anticompetitive practices.control of anticompetitive practices.

UNCTAD recent work on consumer related UNCTAD recent work on consumer related issues in developing countriesissues in developing countries

• AngolaAngola• BoliviaBolivia• BotswanaBotswana• BhutanBhutan• CombodiaCombodia• Costa RicaCosta Rica• Dominican Rep Dominican Rep • EcuadorEcuador• El SalvadorEl Salvador• Colombia Colombia

• KenyaKenya• LaosLaos• MozambiqueMozambique• PeruPeru• RwandaRwanda• Sierra leoneSierra leone• South AfricaSouth Africa

Costa Rica: enforcementCosta Rica: enforcement

Art. 19 of the Patent and copyright Law provides for prior Art. 19 of the Patent and copyright Law provides for prior assessment by the competition agency of a possible assessment by the competition agency of a possible compulsory license when anti-competitive practices is compulsory license when anti-competitive practices is suspected in the exercise of certain IP rights.suspected in the exercise of certain IP rights.

UNCTAD COMPAL PROJECT provided technical UNCTAD COMPAL PROJECT provided technical assistance in the drafting of the regulations of art. 19.and assistance in the drafting of the regulations of art. 19.and the preparation of an operational guideline on how to the preparation of an operational guideline on how to assess competition concern in cases involving IP; assess competition concern in cases involving IP; (patent).(patent).

The Competition Authority makes recommendations and The Competition Authority makes recommendations and the final decision is taken by the Patent Office. the final decision is taken by the Patent Office.

Ecuador: Ecuador: Competition and IPR issues Competition and IPR issues

in the pharmaceutical sectorin the pharmaceutical sector: :

UNCTAD project addressed the challenges facing policy UNCTAD project addressed the challenges facing policy makers in Ecuador in formulating policies that provide makers in Ecuador in formulating policies that provide protection for IPRs and promote innovation while ensuring protection for IPRs and promote innovation while ensuring competition in this sector. competition in this sector.

Experiences of UNCTAD COMPAL Project in Salvador Experiences of UNCTAD COMPAL Project in Salvador and Nicaragua and comparison with the experience of EU, and Nicaragua and comparison with the experience of EU, Brazil and Mexico were highly instructive Ecuador.Brazil and Mexico were highly instructive Ecuador.

The regulatory framework of the pharmaceutical sector The regulatory framework of the pharmaceutical sector seems to facilitat certain abusive conduct by holders of seems to facilitat certain abusive conduct by holders of IPRs, including costly patent litigation. IPRs, including costly patent litigation.

El Salvador: Two sectoral in-depth studiesEl Salvador: Two sectoral in-depth studies

11stst study on medicines (aggregated) study on medicines (aggregated): showed that companies : showed that companies that develop and sell new medicines use a variety of methods that develop and sell new medicines use a variety of methods with the objective of delaying or blocking the market entry of with the objective of delaying or blocking the market entry of generic companies thus harming competition, raising prices generic companies thus harming competition, raising prices for consumer and the cost of public health to government;for consumer and the cost of public health to government;

22ndnd study on specific medicines for certain illnesses study on specific medicines for certain illnesses (disaggregated(disaggregated: Generic vs. branded products. Parallel : Generic vs. branded products. Parallel imports and competition confirmed these findings;imports and competition confirmed these findings;

Colombia and PeruColombia and Peru In both countries, Competition and IPR issues are In both countries, Competition and IPR issues are

handled by the same ”umbrella” competition agency (SIC handled by the same ”umbrella” competition agency (SIC & INDECOPI) & INDECOPI)

UNCTAD COMPAL project assisted both agencies in the UNCTAD COMPAL project assisted both agencies in the compilation of norms, jurisprudence and doctrine on compilation of norms, jurisprudence and doctrine on competition, IPRs and consumer issues; the work led to competition, IPRs and consumer issues; the work led to recent competition and IPRs law reforms in both recent competition and IPRs law reforms in both countries:countries:– Peru (2008) : change of legal analysis to approach Peru (2008) : change of legal analysis to approach

anticompetitive practices in IPR cases (shift from Per se to anticompetitive practices in IPR cases (shift from Per se to Rule of reason approach)Rule of reason approach)

– Colombia (2009): More competence to the Umbrella Agency in Colombia (2009): More competence to the Umbrella Agency in dealing with IPR issues. dealing with IPR issues.

Other ongoing Technical Other ongoing Technical assistance in this areaassistance in this area

Review of the application of competition and Review of the application of competition and IP laws in Kenya;IP laws in Kenya;

Analytical tools for case handlers in Analytical tools for case handlers in Indonesia, Tanzania, Botswana, and Namibia;Indonesia, Tanzania, Botswana, and Namibia;

Review of Competition draft law and IPR in Review of Competition draft law and IPR in Mozambique.Mozambique.

Competition policy and IPRCompetition policy and IPR Lessons learned:Lessons learned:

– First, including a rigorous assessment of First, including a rigorous assessment of competition and consumer issues on the competition and consumer issues on the analysis of IPR filings may generate more analysis of IPR filings may generate more costs to business but would be balanced by costs to business but would be balanced by social and total welfare objectivessocial and total welfare objectives..

– Second, allowing for post-grant reviews and Second, allowing for post-grant reviews and opposition by third parties and government opposition by third parties and government bodies can diminish the cases which an IPR bodies can diminish the cases which an IPR enables anticompetitive practices.enables anticompetitive practices.

Concluding remarksConcluding remarks

Striking a balance between the protection of Intellectual property and Striking a balance between the protection of Intellectual property and controlling anticompetitive use of IPR is a critical to securing open controlling anticompetitive use of IPR is a critical to securing open and fair access to knowledge.and fair access to knowledge.

Recent experiences of competition and IP authorities show that a more Recent experiences of competition and IP authorities show that a more frequent use and effective enforcement of the patent and trademark frequent use and effective enforcement of the patent and trademark systems reduce the probability of anticompetitive practices.systems reduce the probability of anticompetitive practices.

These results confirm the proposition that in addition to focusing on IP These results confirm the proposition that in addition to focusing on IP law reforms a more effective enforcement of consumer and law reforms a more effective enforcement of consumer and competition laws will enable the a2k social movement to serve human competition laws will enable the a2k social movement to serve human rights, democracy and economic development.rights, democracy and economic development.

Thank you for your kind attentionThank you for your kind attention

Hassan QaqayaHassan Qaqaya HeadHead

Competition law and Consumer policies Branch,UNCTADCompetition law and Consumer policies Branch,UNCTAD [email protected]@unctad.org www.unctad.org/competitionwww.unctad.org/competition

Tel 0041229175494Tel 0041229175494

mailto:[email protected]

http://www.unctad.org/competition

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