Innovation, Competition and Consumer Welfare in Intellectual Property Law

Innovation, Competition and Consumer Welfare in Intellectual Property Law

Gustavo Ghidini

This authoritative book provides a comprehensive critical overview of the basic IP paradigms, such as patents, trademarks and copyrights. Their intersection with competition law and their impacts on the exercise of social welfare are analysed from an evolutionary perspective.

Chapter 1: Introduction: The Basic Paradigms and Constitutional Framework of Intellectual Property Law

Gustavo Ghidini

Subjects: law - academic, competition and antitrust law, intellectual property law

Extract

1. Foreword: the Mosaic and the Fabric Patent, trademark and copyright: each of the fundamental paradigms of intellectual property law (hence, IP law) is governed by a highly specific legislative framework in terms of subject matter, function, governing principles, etc. This specificity, whose characteristic elements will be examined later, should not however let us lose sight of the ‘underlying’ shared fabric of economic and constitutional-type common denominators, which in turn reflect common historical and institutional roots. Indeed, born of the dual, political and economic, revolution that crowned the Age of Enlightenment, modern IP law essentially reflects a legal framework governing the policies of industrial and commercial development and innovation based on the right of free economic initiative and free market competition. In previous centuries – from the age of the guilds through to the mercantile system – this policy was basically grounded on corporative and/or individual1 privileges, concessions and limited access, typical of a command economy. A careful consideration of that framework, shaped by its revolutionary background, is essential to a systemically rewardingly reconstruction of the basic features of intellectual property rights (hence, IPRs), as well as of the ways the latter are intertwined with and ‘alloyed’ by the rules governing competition, namely antitrust and unfair competition law. In particular, such consideration will highlight how all the various IP paradigms, beyond their different normative features, are based on a dialectic relationship between ‘property’ (exclusive individual rights) and ‘freedom’ (of each individual to 1 For example, as early as the Venetian patents of...