Intellectual Property Law

Intellectual Property Law

Economic and Social Justice Perspectives

Edited by Anne Flanagan and Maria Lillà Montagnani

Intellectual Property Law examines emerging intellectual property (IP) issues through the bifocal lens of both economic analysis and individual or social justice theories. This study considers restraints on IP rights both internal and external to IP law and explores rights disequilibria from the perspective of both the rationale of IP law and the interface with competition law. The expert contributors discuss the phenomenon in various contexts of patent, trade secret; and copyright, each a tool to incentivize the growth of knowledge beyond innovation and creativity.

Chapter 8: Social Justice, Innovation and Antitrust Law

Mariateresa Maggiolino

Subjects: law - academic, intellectual property law


Mariateresa Maggiolino THE ROLE THAT THE SOCIAL JUSTICE PERSPECTIVE COULD HAVE PLAYED IN SHAPING THE RELATIONSHIP BETWEEN DOMINANT FIRMS’ PROPRIETARY INNOVATIONS AND ANTITRUST LAW 1. Pursuing ‘social justice’ may mean supporting a non-discriminatory distribution of resources and opportunities among people to give them fair treatment, a just share of collective wealth, and the right to affect social and economic developments. Thus, endorsing a social justice approach towards proprietary innovations, such as patented inventions and copyrighted creations, may mean – as the previous chapters have shown – discussing whether the existing IPRs allow, on the one hand, inventors and authors to receive a fair and just consideration for their efforts;1 and, on the other hand, the whole society to benefit from the innovation, as such, and from the spread of knowledge that each innovation entails and triggers.2 Yet, how can a social justice perspective have relevance to antitrust rules regarding dominant firms’ conduct and, in particular, dominant firms’ conduct involving proprietary innovations? Though promulgated in different years,3 in the United States and in the European Union, section 2 of the Sherman Act and Article 102 of the 1 See Federico Morando, Copyright default rule: reconciling efficiency and fairness, Chapter 2 in this book. 2 See Jerzy Koopman, Chapter 4 in this book. 3 In the United States such a ‘social justice’ approach to antitrust law took place in the years before the advent of the Chicago School, leading up to the 1970s. Instead, in the European Community the same approach has...

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