- Elgar Commentaries series
Section 8 CONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES
Article 40 and Article 8.2 were included to address the particular concerns of developing and least developed Members about the exercise of intellectual property in the TRIPS negotiations.1 Article 8.2 specifically addressed abuses and restrictions against trade and technology transfer, while Article 40 is concerned with anti-competitive licensing practices. More specifically, Article 40.1 acknowledges that intellectual property licensing may be anti-competitive and Article 40.2 enables Members to make laws prohibiting the anti- competitive licensing of intellectual property, so long as those laws are consistent with TRIPS and appropriate to prevent or control such practices. In addition to this, Article 40.3 and 40.4 provide a procedure between Members to resolve differences about the alleged treatment of their national’s or domicile’s intellectual property under another Member’s competition laws addressing licences. Through Article 40 and Article 8.2, a significant avenue is provided to limit the exercise of intellectual property, balancing the particular interests of a Member to adopt different economic goals with different strategies for achieving those goals. Other related provisions that also address competition concerns are TRIPS Articles 6, 31(k) and 39.1 and the Paris Convention (1967) Articles 5A(2) and 10bis, providing the grounds to limit the exercise of IP rights by their owners. As Members seek to adopt technological development, they require the transfer and dissemination of technology, mostly from more developed Members and most often subject to intellectual property. This technology will depend on licensing to achieve that transfer and dissemination.
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