| Abstract [eng] |
Article 82 of the Treaty establishes the prohibition of any abuse by one or more undertakings of a dominant position within the common market or in substantial part of it in so far as it may affect trade between Member States. The essence of intellectual property is defined by its negative rights giving rise to their holders capability to control the behavior of others and amounting to the legal exclusivity over the object of right in question, called legal monopoly. Subject to the definition of the relevant market, the said ability of controlling other‘s behavior may erect barriers to entry or extension and bring the legal monopoly of the owner of intellectual property close to the economic one. In this sense, the legal monopoly is justified in as mush as it is capable of outweighing social costs by the respective benefit. The balance between the social benefit and costs of the exclusivity, sought by the intellectual property law, in every particular case is not precise. Therefore competition law may be applied to limit the exercise of intellectual property. Article 82 of the Treaty may be applied for restricting acquisition or exercise within the meaning of either anticompetitive or exploitative abuse of intellectual property right by an undertaking holding a dominant position on the market. The European Court of Justice has held that the owner of intellectual property is not obliged to license its rights for using of them by others. However, the refusal to grant the copyright license might amount to the abuse within the meaning of Article 82 of the Treaty, where the protected object were indispensable from particular business of other undertakings, the refusal were such as to prevent a new product for which the consumer demand exists, were not such as could be objectively justified, and were capable of eliminating any competition on the ancillary market. |
