WIPO Development Agenda Progress

The next stage of discussions on what is actually meant, and hoped to be achieved, by the WIPO Development Agenda has been fruitful. Thanks to IP Watch for the report.

Most interesting for our project are comments on enforcement, suggesting that WIPO is to approach the matter in a wider context, with reference being made to article 7 TRIPS. It remains to be seen how much impact WIPO can have in this regard once rights are in the hands of IP owners, or if it is hoped that a change in the approach and perspective of WIPO will send a valuable signal to developing IP systems.

The need for competition action in terms of technology transfer has also been recognised, most recently in a presentation by John Barton (see report - thanks again IP Watch - http://www.ip-watch.org/weblog/index.php?p=548&res=1024&print=0) So far, however, there is no agreement on competition or technology transfer.

International developments

After a slow period, many developments of interest on the international stage. Many thanks to IP Watch.

The WIPO Development Agenda is gathering pace, and might find helpful an EC Commission report on the importance of open source in generating work in the ICT field http://www.ip-watch.org/weblog/index.php?p=532&res=1024&print=0 . Also interesting is the growing momentum of the IGF which proposes to consider some IP questions - see http://www.ip-watch.org/weblog/index.php?p=533&res=1024&print=0

Court of Appeal - abuse of a dominant position

With Attheraces v British Horseracing Board, the Court of Appeal has considered for the first time an action for abuse of a dominant position under section 18 Competition Act 1998 and article 82 EC Treaty. The lengthy and considered decision agrees with the first instance judge (blogged in January 2006) in terms of legal principles - however disagrees in respect of how pricing principles were to be applied on the facts. There is some consideration of refusal to supply and whether this was reasonable and justified on the facts - yet although para 222 notes some issues of interest to this project, the focus of the case was pricing.

The Court of Appeal found that there was no abuse of a dominant position by excessive unfair or discriminatory pricing, or by unreasonable threats to terminate existing supply arrangements.

Two strong messages of interest to our project come out: first the recognition that the conduct in question might have negative consequences, but that this did not mean it was necessarily an abuse of a dominant position - article 82 and section 18 were not about price regulation (para 217). Secondly, the decision starts with expression of concern at the ability of courts and private adversarial actions to properly deliver solutions to problems such as this - arbitration, or new fora will more flexible remedies are suggested (para 7) It will be interesting to note if this approach is further pursued in compulsory licensing questions: better to focus on Euro-Defences perhaps?

Court of Appeal - abuse of a dominant position

With Attheraces v British Horseracing Board, the Court of Appeal has considered for the first time an action for abuse of a dominant position under section 18 Competition Act 1998 and article 82 EC Treaty. The lengthy and considered decision agrees with the first instance judge (blogged in January 2006) in terms of legal principles - however disagrees in respect of how pricing principles were to be applied on the facts. There is some consideration of refusal to supply and whether this was reasonable and justified on the facts - yet although para 222 notes some issues of interest to this project, the focus of the case was pricing.

The Court of Appeal found that there was no abuse of a dominant position by excessive unfair or discriminatory pricing, or by unreasonable threats to terminate existing supply arrangements.

Two strong messages of interest to our project come out: first the recognition that the conduct in question might have negative consequences, but that this did not mean it was necessarily an abuse of a dominant position - article 82 and section 18 were not about price regulation (para 217). Secondly, the decision starts with expression of concern at the ability of courts and private adversarial actions to properly deliver solutions to problems such as this - arbitration, or new fora will more flexible remedies are suggested (para 7) It will be interesting to note if this approach is further pursued in compulsory licensing questions: better to focus on Euro-Defences perhaps?

Wiki - The Personality Rights Database

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