European Community Compulsory Licensing Policy: Heresy versus Commen Sense Symposium on European Competition Law

Fine, Frank | January 1, 2004

There is a growing trend to limit the rights of intellectual property owners when the public interest warrants. Until very recently, this phenomenon has been manifested only at a transnational level.1 For example, the World Trade Organization, as recently as November 2001, in its Doha Agreement (“Doha”),2 enabled certain nations of the Asian and African subcontinents to obtain compulsory licenses to manufacture and distribute domestically certain anti-retroviral drugs by declaring a state of national health emergency. Doha raises an intriguing question: if limited intrusions into valuable intellectual property rights may be justified on public health grounds, should not such intrusions into intellectual property also be tolerated, and indeed encouraged, in order to safeguard other public interests, in particular, the maintenance of competition? There is currently a stormy debate on both sides of the Atlantic as to whether compulsory licensing, on antitrust grounds, is an appropriate means of breaking monopolies that owe their existence, to a large extent, to the ownership of valuable intellectual property. In the European Union, the question is not whether the European Commission (“Commission”) and European Courts support the notion of compulsory licensing on antitrust grounds, but rather how far these institutions are willing to go to defend competition against the interests of intellectual property owners.