What IP owes to antitrust – and which IP paradigm is required to foster innovation and creativity in the digital era
Gustavo Ghidini Emeritus, University of Milan; and Senior Professor of IP Law, LUISS University, Rome, Italy

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The Essential Facilities (EF) doctrine meant that the ‘interference’ of antitrust principles on intellectual property regimes progressively made room for third parties to access IPR-protected intangibles, inventions, and software products in particular. A substantial step indeed against the ‘monopolization’ of top-notch, ‘non-substitutable’ innovation. But the objective limits of the applicability of said doctrine appear nowadays too strict vis-à-vis the necessities of the technical mode of production of digital innovation, AI first and foremost. A proposal for a new IP paradigm is submitted – one that could reconcile said necessities with the legitimate interests to an adequate compensation of authors of (utilitarian or ‘intellectual’) digital works.

Contributor Notes

This article reworks a lecture held on 24 January 2023 at the QMIP Institute.

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