Monday, 30 August 2010

Abuse of Intellectual Property Rights?
I was invited to by the National Commission for the Supervision of Business Competition on 30 August 2010 to act as an expert resource person in their discussion on the interpretation of the rules on abuse of dominant position.
This particular area of law is quite broad. One of the topics to be discussed relates to intellectual property. One of the key rules of Indonesian competition law is the prohibition of abuse of dominant position, pursuant to which enterprises may not abuse their dominant positions by way of, inter alia, restricting (access to) the market and restricting technology advancement. I agree with this and will discuss this somewhere below.
One sentence in their proposed outline that has intrigued me reads: IP rights holders may not abuse their IP rights.
I believe that this proposition is too far-reaching. In my opinion, IP rights holders may do whatever they want with their IP rights, because IP rights are the so-called "rights in the production of the soul" - I have invented this English translation for the German term "Rechte an den Produkten des Geistes" and the Dutch term "rechten op de voortbrengselen van de geest". I don't know whether this English term is known in IP Law.
Intellectual Property rights are the rights in the production of the soul and no one can be deprived of their rights in the production of the soul, as IP rights are also human rights - vide Article 27 of the 1948 United Nations Universal Declaration of Human Rights. However, there are balance of rights of obligations and there are also rules on exceptions and limitations in the areas of IP.
A trademark owner has an absolute right to manage and dispose of his/her/its trademark. He/she/it may exploit his/her/its trademark commercially to the fullest extent and a trademark is always renewable. Therefore, a trademark owner can always prevent anyone else from using a trademark which is similar in substance or in entirety with his/her/its own trademark, and if necessary, in the worst battle before the court, to defend his/her/its rights. In the area of trademark law, there are nos such things as compulsory license.
Likewise in the area of Geographical Indication law. It is nonsense to condemn owners of GI rights for exploiting their rights to the fullest extent. GI belongs to the society or a group of companies in a certain geographical territory. GI rights are perpetual and there are no such things as GI licensing.
The exercise of these absolute rights should be viewed as not protecting IP owners only, but also protecting the consumers because:
What the law mandates is that in exercising these absolute rights, IP rights owners must take the needs of the community into account. Therefore, there are rules on compulsory licensing in the area of patent law and, in accordance with the Annex of the Berne Convention, which is also embodied in our Copyright legislation, for educational purposes, local peoples may be given a license by the government to have foreign-language books translated and reproduced only for the purposes of meeting the academic needs. Compulsory licenses are not exclusive, but commercial licenses are.
In my opinion, there are no such terms as "abuse of IP rights by IP rights owners", but it is possible that IP licensees (who are not the real IP rights owners) who will likely have the chance and opportunity to abuse their dominant positions as exclusive licensees, by restricting (the access to) the market and restricting technology advancement. If licensees are given rights equal to those of patent rights owners, for instance, then licensees may prevent others from making technology advancement. This is something that has been disliked since 1948.
IP licensees are not IP rights owners and cannot exercise their rights excessively as if they were the real IP rights owners - European Court of Justice ruling in the case of Konstanz und Grundig [PS: I forgot the case number]. That's what I learned as an LL.M student in the Netherlands, back in 1998.
What do you think?

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