The economic value of intellectual property: eroded and made inscrutable by single market legislation

Abstract

An examination of the effectiveness of measures of European Community law to harmonise intellectual property protection throughout the Community, focusing on two consequences of these measures: first, the adverse impact on the commercial value of the intellectual property in the hands of the proprietor or licensee and, secondly, the implications for the due diligence enquiry of the scope of protection conferred by intellectual property rights undertaken whenever an interest in intellectual property is acquired. The position of the national law of Member States following accession to the Community is examined, in particular its limits to confer monopoly or quasi monopoly protection on the intellectual property proprietor. The effect of international cooperation (such as the Berne Convention) in shaping national law is considered by way of essential background to determine the extent to which obstacles to the implementation of Community principles result. Particular attention is given to the inter-relation between the provisions of the Treaty of Rome and national law, insofar as the free movement principles of Articles 30 to 36 and the competition law prohibition of Article 85(1) conflict with the scope of intellectual property rights conferred nationally. The role of Commission Regulations conferring exemption from Article 85(1) for intellectual property agreements is illustrated by reference to Commission Regulations EC 240/96 (concerning technology transfer agreements) and EC 418/85 (concerning research and development agreements). Finally an assessment is made of the effectiveness of selected Council Directives (91/250 EEC and 93/98 EC concerning computer software and duration of copyright) as harmonisation measures, taking into account existing sources of law and the needs of emerging technologies.