WIPO Journal - World Intellectual Property Organization

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234 The WIPO Journal provides many specific examples on how to enforce competition law in the ICT sector, including how to deal with patent pool and cross-licensing issues. 100 By contrast, the latest (and only) ACCC guideline on the application of TPA in the IP field was drafted in 1991 and has not been updated since that time. Over the past two decades, ever-improving technology, particularly digital technology, has fundamentally changed the landscape of the technology market. Thus it is necessary to have a new guideline on how to use competition law to prevent the abuses of IPRs in many new areas, such as the ICT sector. Thirdly, it is necessary to establish EU-style regulations to provide legal guarantees for using competition law to prevent the abuse of IPR in the new technology market. In comparison with legal guidelines, regulations have a binding effect and are easy to be enforced. This would arguably provide significant certainty for the business operations of ICT companies against the abuse of IPRs in Australia. Conclusion In the current globalisation and knowledge economy environment, an increasingly number of countries have regarded innovation capability building as one of the most effective strategies for them to maintain the sustainable growth of national economy, and they believe that the “innovation policy can create long-term growth”. 101 Although both competition law and IP law play a significant role in enhancing innovation, the role of competition law in preventing IP abuses and enhancing innovation has not been given sufficient attention by regulators in many countries, including Australia. This article examined the impact of competition law on the IP abuse prevention in the digital market, particularly the ICT sector. It first examined the competition law nature of IP abuse conduct under the TRIPS Agreement. It then examined the recent development of IP abuse prevention laws and litigation in the EU, particularly its recent case law. After that, it provided a comprehensive analysis of likely effects and potential limits of the existing Australian competition law regime (particularly s.51(3) of the TPA) and its impacts on IP abuse prevention in the ICT sector. The article contended that, in order to achieve a trade-off of enhancing innovation and preventing IP abuse, Australia should draw on experiences from both the EU and the United States and develop an effective balancing legal mechanism with its own features. It is imperative to reform the current IP-exemption provisions in the TPA in order to improve the effectiveness of Australian competition law in balancing IP protection and competition enforcement, and to create strong incentives for both IP holders (e.g. dominant ICT companies) and users (e.g. potential competitors of dominant ICT companies) to make further innovation. Such a reform would contribute to a sustainable growth of the innovation-oriented national economy and the international competitiveness of Australia. 100 DOJ and FTC, Antitrust Guidelines for the Licensing of Intellectual Property, 1995, Ch.3, at http://www.usdoj.gov/atr/public/guidelines/0558 .htm [Accessed March 30, 2011]. 101 Roy Green, Australia’s knowledge-based future — How innovation policy can create long-term growth and jobs, speech at UTSpeaks, July 14, 2009, at http://www.uts.edu.au/new/speaks/2009/July/1407.html [Accessed March 30, 2011]. (2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited
Cumulative Index This index has been prepared using Sweet & Maxwell’s Legal Taxonomy. Abuse of dominant position Australia, 217–234 compulsory licensing essential facilities, 74–79 computer industry, 74–81 digital technology, 217–234 intellectual property, 217–234 Applications filing date, 173–195 patents filing date, 173–195 Australia abuse of dominant position, 217–234 digital technology, 217–234 Botswana traditional knowledge, 143–156 Climate change carbon pricing, 133–142 economics and law, 133–142 farming, 133–142 greenhouse gas emissions, 133–142 patents, 133–142 Compulsory licensing abuse of dominant position essential facilities, 74–79 computer industry, 74–81 essential facilities, 74–79 Computer industry abuse of dominant position, 74–81 compulsory licensing, 74–81 essential facilities, 74–81 Copyright developing countries, 82–92 open-source software, 82–92 Costs patents affordability, 38–48 economics and law, 43–45 litigation costs, 47 policy, 45–47 trends, 38–43 Developing countries copyright, 82–92 economics and law enforcement of intellectual property law, 6–13 open-source software, 82–92 policy, 99–122 foreign investment, 93–98 geographical indications tea, 157–172 globalisation, 196–216 impact of stronger IP rights in, 93–98 intellectual property economics and law, 99–122 enforcement, 1–19 impact of stronger rights, 93–98 international trade, 93–98, 196–216 open-source software, 82–92 tea geographical indications, 157–172 technology transfer open-source software, 82–92 promotion, 93–98 Digital technology abuse of dominant position, 217–234 Australia, 217–234 Economics and law carbon pricing, 133–142 developing countries enforcement, 6–13 geographical indications, 157–172 open-source software, 82–92 policy, 99–122 exhaustion of rights, 123–132 farming, 133–142
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THE WIPO JOURNAL: ANALYSIS OF INTEL
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The WIPO Journal Table of Contents
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The Juridification of Indigenous Kn
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Indigenous knowledge systems and ex
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One of the unresolved issues was wh
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The Juridification of Indigenous Kn
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Registration of traditional knowled
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ight to equitable remuneration and
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Asia and America where it is sold c
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The Economic Effects of Geographica
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minimum quality standards for regio
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Belletti et al. used a case-study a
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Sensitivity analysis As shown in Ta
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the domestic perspective. This addi
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Filing date requirements under the
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Filing date requirements under the
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• while some provisions of the PL
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If an applicant files the internati
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However, it was noted in the Workin
Page 45 and 46: Filing date requirements under the
Page 47 and 48: Before the Reform of the PCT in vie
Page 49 and 50: — where the priority application
Page 53 and 54: “Bending” of PCT articles in th
Page 57 and 58: Not introducing the PLT requirement
Page 59 and 60: on the future direction of global I
Page 61 and 62: IP in Global Governance: A Venture
Page 63 and 64: negotiated. 28 Similarly, the WIPO
Page 65 and 66: IP overreach: The dangers of a boom
Page 67 and 68: As part of the social cost or the
Page 73 and 74: “geographical, historical and reg
Page 75 and 76: facilitated the integration of the
Page 79 and 80: Competition Law and IP Abuse Preven
Page 81 and 82: Although the TRIPS Agreement has be
Page 83 and 84: vertical licensing agreements; and
Page 85 and 86: “• the refusal relates to a pro
Page 87 and 88: Nevertheless, so far as s.51(1) is
Page 89 and 90: “In bridging the different polici
Page 91 and 92: a third party’s access to their I
Page 93 and 94: Competition Law and IP Abuse Preven
Page 95: should further take into account
Page 99 and 100: Parallel imports economics and law,
Page 101: *412409* 2011 VOLUME 2 ISSUE 2 THE
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