Restrictions of competition in licensing agreements: The world-wide convergence of competition laws and policies in the field of intellectual property

Abstract

Competition law aims at promoting the competitive process by preventing anti-competitive practices, while IP law provides exclusive rights to authors and inventors. Although tensions between the two fields of law exist, they share the common goal of improving incentives for innovation. It is a difficult task for competition policymakers to determine the relationship between competition and exclusivity. In practice, the most important challenge concerns restrictions on competition in licensing agreements. This article aims to examine the existing approaches at the intersection of competition law and IP from a comparative perspective, focussing on the situation in the US, the EU and Korea. While differences exist, for example, as regards the abuse of market dominance, considerable convergence can be seen in the competition law treatment of licensing agreements. This development is welcome, because harmonisation in this field is particularly conducive to the international transfer of technology.