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Beitrag in Festschrift

Intellectual Property: Exclusive Rights for a Purpose


Ullrich,  Hanns
MPI for Intellectual Property and Competition Law, Max Planck Society;

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Ullrich, H. (2012). Intellectual Property: Exclusive Rights for a Purpose. In K. Klafkowska-Waśniowska (Ed.), Problemy Polskiego e Europejskiego Prawa Prywatnego: Ksiega Pamiatkowa Profesora Mariana Kępińskiego (pp. 425-459). Warszawa: LEX.

Protection of innovative technologies by patents or by copyrights is marked by a tension between, on the one hand, the private interest in obtaining a broad exclusivity over market opportunities, and, on the other, the public interest in strictly limiting the "monopoly" right to what is necessary for it to serve as an incentive for innovation. Frequently the argument goes that instances of "over-protection" may be remedied by – possibly enhanced – enforcement of competition law. However, while intellectual property protection forms part of the framework regulation of competition driven dynamic markets, competition law alone will not contain excessive protection but at the margin. A dysfunctional operation of the system of protection typically results from a mismatch between the purpose, which it is supposed to serve, and the way in which the property rights are interpreted and/or used, which are made available to market actors to meet such purpose. There is, therefore, a need to adequately bind the property logic, which informs the system of protection in practice, to its underlying policy. Binding the protection of exclusive rights over technology to its purpose is warranted, because innovative knowledge is not a subject matter of property rights like any other. Rather, it is transformed from a public good into a private right of property by specific legislative design. Whether bound tightly or loosely to its purpose, whether defined broadly or narrowly, there is thus a political content to the protection of technological property. It so is even if the legislator or the courts decide to put the emphasis on the property logic rather than on the purpose of protection. The nature and intensity of this political content necessarily varies from jurisdiction to jurisdiction as, indeed, it will and must be defined in accordance with the needs of an economy and the goals of a polity. For the European Union this means that to the extent it sets for itself the objectives of technological property protection, it also ought to determine itself the terms of the system and to control itself its operation. After all, the conditions and criteria of technology protection constitute part of the framework regulation of the Internal Market as a market for innovation.