The TRIPs Agreement Without a Competition Agreement?
This paper addresses the relationship of intellectual property rights and competition policies and rules addressing the conduct of private enterprise. Intellectual property rights are considered to be essential, but not sufficient, conditions for competition. Potentially excessive scope and use need to be balanced by way of competition rules. Such balance is partly inherent to the scope of IPRs and thus within the TRIPs Agreement. Partly, it will be achieved by applying competition rules. The proper balance, it is argued, does not necessarily require the establishment of comprehensive global disciplines on private party conduct and competition in the WTO. A number of reasons and conflicting interests are discussed. The paper argues that the balance can be adequately achieved by way of national or regional anti-trust rules, and efforts to bring about adequate legal regimes in particular in developing and transitional countries should be supported by national and international fora, including the WTO. There is no need at this stage, nor would the World be ready, for global anti-trust regimes and authorities. The paper, however, argues in favour of harmonisation of rules in two major areas: International legal assistance in the prosecution of restrictive business practices and restrictions in WTO law on export cartels. Both areas would considerably enhance the prospects for a balance between IPRs and competition rules, and thus for market access in world trade law.