Comment II: Competitive baselines for intellectual property systems

Introduction My thesis is that competitive markets, appropriately structured and regulated, are instrumental in preserving and expanding the global commons and that intellectual property systems and competition policy should work in tandem to protect the global commons. Unfortunately, the example of the developed countries, particularly the United States, is one of the failures of creating adequate and appropriate competitive baselines for intellectual property systems. Mahatma Gandhi famously quipped about Western Civilization: “It's a good idea. We should try it sometime.” Developing a more rigorous relationship between competition and intellectual property law is a good idea, worth trying. The advent of TRIPS makes this idea especially necessary. There are two principal reasons why intellectual property law and competition law have passed each other by. The first has to do with the ambiguity in defining competition law. Under United States legal doctrine, competition law is often seen as overlapping with antitrust law, a body of legislation consisting of the Sherman Act, the Clayton Act, and the Federal Trade Commission Act. However, limiting competition policy to these bodies of law alone severely limits our understanding of the relationship between intellectual property law and competition policy and the possibilities for jurisdictions that are now developing their own legal schemes. For example, limiting our focus to antitrust law would ignore the important role that constitutional doctrine, particularly the law of preemption, has played in balancing competition policy and intellectual property law. Preemption has historically limited the ability of intellectual property owners to extend their rights through contract.