Abstract: With the development of the knowledge economy, technology has become the core competitiveness of enterprises. Licensing agreements for intellectual products may become a threat that harms competition due to their exclusive characteristics. Therefore, antitrust lawsuits against technology owners have emerged in judicial practice. This article starts from the conflict of interests between antitrust law and intellectual property law, and analyzes the legislative purposes of the two and the balanced principle of their coordinated and coordinated development.

Keywords: antitrust law, intellectual property law, conflict of interest, principle of balance

1. Microsoft case

1. Antitrust on Windows systems Litigation

The Windows operating system developed by the American company Microsoft accounts for more than 90% of the global market share. On May 18, 1998, the U.S. Department of Justice and the attorneys general of 20 states filed an antitrust lawsuit against Microsoft, accusing Microsoft of abusing its market dominance and preventing other software vendors from fair competition with it. On April 3, 2000, the District Court for the District of Columbia issued its verdict. It was determined that Microsoft forced IE browser on users through bundled sales, installed the source code in the Windows operating system, and excluded competitors. [1]

2. Debate over the first screen provision

"The first screen provision" is a dispute between Microsoft and computer equipment manufacturers (Original Equipment Manufacturers) The license contract stipulates that when users who have installed the Windows operating system first start their computer, a picture of the unified features of Windows (such as icons, icon design style and size, etc.) must be displayed on the screen. The plaintiff claimed that Microsoft abused its exclusive rights to Windows operating system software through the "first screen clause" and harmed the interests of device manufacturers, consumers, and other software producers. [2]

In these two different cases, the producers and consumers, as plaintiffs, both believed that Microsoft abused the dominant position of Windows system in the computer operating system market and harmed other competitors. and the long-term interests of the entire market. Microsoft insists that its rights are legally protected by intellectual property rights. This reflects the conflict between the two legal values ??of antitrust law and intellectual property exclusivity. Is there a better balancing method? In other words, from the perspective of antitrust, how can the value protection of intellectual property be reflected?

2. Conflicts of interest between antitrust laws and intellectual property rights

1. The legislative purpose of intellectual property rights - to provide adequate protection to right holders

Characteristics of intellectual property rights It can be summarized into five aspects: intangibility, exclusivity, regionality, practicality and replicability. From the perspective of this article's focus, the most influential factor on market competition is its exclusivity. "Exclusiveness reveals the monopoly or exclusivity of intellectual property as an absolute right and domination right."[3]

As far as the Microsoft case is concerned, because of the exclusivity of intellectual property, The copyright owner, Microsoft, has the exclusive right to use the Windows operating system. This is from the source of the rights. In terms of the exercise of rights, since intellectual property rights protect technological achievements that promote social progress, most rights holders will socialize their achievements through the use of licensing agreements. [4] Driven by the requirement to maximize technical benefits, the law gives rights owners the privilege to become exclusive owners through legal transactions. The prices and contracts obtained for the exercise of this "exclusive right" are different from those obtained under competitive market conditions. Once an intellectual product is protected by the intellectual property system, it means that others are excluded from the same behavior. Therefore, intellectual property rights are ultimately linked to “exclusive” status acquired without competition. [5]

Therefore, the exclusivity of intellectual property rights may be abused by rights holders, thereby undermining the spread and innovation of technology.

For example, using intellectual property rights to form economic alliances to restrict the entry of other competitors; to obtain a dominant position in the technology market; or to unreasonably charge excessive prices to the licensee in the licensing contract, and to impose exorbitant prices on the expired Restricting the use of technology after the contract or extending the contract period in disguise by demanding high prices... These behaviors have undoubtedly deviated from the original intention of intellectual property rights to promote social progress. It is precisely because of this that other competitors on the opposite side have to resort to antitrust laws. to safeguard their own interests.

2. The legislative purpose of the Anti-Monopoly Law - to protect the stability of the market competition structure

In the market economic system, the most important mechanism is the competition mechanism. Once the competition mechanism is distorted, the market will If it cannot function normally, the market order and market structure will be destroyed. Monopoly derived from free competition is an important force that distorts the competition mechanism. However, the market mechanism itself does not have the function of maintaining fair competition. Therefore, it is necessary to establish a legal system to protect the competition mechanism. The purpose of enacting antitrust laws is to maintain and promote fair transactions to achieve full and effective competition.

Regarding the establishment of a market structure with effective competition, the Anti-Monopoly Law opposes monopoly, restrictions on competition, abuse of dominant market positions, and maintains a competitive market structure. [6] At the legal level, monopoly is the stipulation of behavior and status. Monopoly is first of all a stipulation of behavior. Antitrust law focuses on the behavior of market entities. As long as the purpose of such behavior is to restrict competition, it will be subject to legal sanctions. Monopoly is also a stipulation of a state, which focuses on market concentration. The monopoly state essentially means that the market has reached or exceeded the lower limit of enterprise concentration defined by law. Therefore, even if there is no obvious monopoly behavior, relevant government departments can take legal action to change the monopoly behavior into a state of competition, and the monopoly state itself becomes the intervention point of the state's coercive power.

[7]

Whether in developing or developed countries, the "social basis" of antitrust law makes it the "economic constitution" of market economy countries and assumes maintain the order of the market economy. Although in most cases antitrust laws and related policies are implemented through state public power, antitrust laws themselves are aimed at achieving the best state of free competition. Therefore, a market economy is inseparable from antitrust law.

3. Conflicts of interest between antitrust law and intellectual property law

The conflicts of interest between antitrust law and intellectual property law mainly focus on the following issues: 1. Competition policy focuses on the short term Efficiency distribution or the degree of long-term efficiency. If the focus is on short-term interests, the behavior of intellectual property rights holders will be more tolerant, while if the focus is on long-term development, the exercise of their rights will be strictly restricted;

2. Is the market dominance due to knowledge? acquired property rights. If the answer is yes, then intellectual property rights must be regulated by antitrust laws; 3. The economic characteristics of intellectual property itself (marginal cost is very low and easy to be misappropriated). This point shows that when using anti-monopoly law to analyze the terms of a license agreement, attention must also be paid to the rationality of the rights holder's exercise of rights; 4. Whether the license agreement should be recognized as an agreement that restricts horizontal or vertical competition. [8]

In the two types of cases related to Microsoft listed in this article, the plaintiffs without exception believe that Microsoft has destroyed their "right to compete" by relying on its exclusive right to license the Windows operating system. , Therefore, Microsoft’s behavior should be sanctioned by the antitrust law. The most important issue is: What legal principles should be applied to licensing others to use protected works, which is the core commercial aspect of intellectual property law, especially copyright law. It is true that today, when technology has become the core factor of market competitiveness, the scope of protection of the exclusive rights of intellectual product owners has attracted increasing attention from antitrust laws. If personal intellectual property rights are fully protected under the concept of freedom of contract, more "Microsoft" cases will occur. And if the "exclusivity" of intellectual property rights is split open with the sharp edge of antitrust, technology owners will undoubtedly fall into a sense of crisis of "nothing to rely on" and even lose the enthusiasm for technological innovation, leading to aggravation of social development. cost.

In short, one is against monopoly and the other is about granting monopoly. [9] Judicial practice has given different answers to such questions, and there is no final conclusion in theory.

3. How to achieve the coordinated development of antitrust law and intellectual property law

1. Reasonable principles of antitrust law

The significance of antitrust law is to shape A good market structure allows competing entities to compete fairly, thereby improving the level of economic development. Out of respect for the interests of the public, it shows flexibility and has different attitudes towards behaviors of the same nature in different periods. This is within a country; and in the fiercely competitive international market, protecting one's own intellectual property rights is also protecting the country's intellectual property rights. At this time, the antitrust law will support the exclusivity of intellectual products. In short, the standard behind the anti-monopoly law is the need for economic development. From the domestic market, it is the interests of consumers and public interests. On a global scale, it is to maximize the interests of the country on the basis of peaceful development. Therefore, in the face of various competitive behaviors, the legislation and judicial practice of various countries around the world have basically established the "principle of reasonableness." [10] According to the principle of reasonableness, the antitrust law does not prohibit all economic alliances, but only those corporate mergers that can create or strengthen market dominance. Therefore, taking the principle of reasonableness as the basic principle of anti-monopoly law can make anti-monopoly law better adapt to complex economic situations and avoid the negative impact that mechanical law enforcement may have on normal economic activities. [11]

In the antitrust regulations of intellectual property rights, the "principle of reasonableness" also applies. Therefore, there are several basic principles that cannot be ignored: First, it cannot be considered that intellectual property rights lead to market dominance; monopoly stems from the competition system rather than the intellectual property system. Social progress and innovation are the original intention of intellectual property rights. Therefore, not every system of intellectual property rights must be subject to antitrust law. Secondly, competition policy should recognize the rights recognized under the intellectual property law system; only in this way can the enthusiasm of technological innovators be protected. Finally, although there are some agreements that restrict competition, such an agreement can be tolerated if it promotes competition more than no agreement; in the absence of a licensing agreement, it is likely to lead to confusion in efficiency because there are no provisions, And without the promotion method of licensing agreement, the socialization of technological achievements will become empty talk. [12] These three principles indicate that when dealing with such issues, recognition of the basic adjustments of intellectual property rights is the basis, and then connected with antitrust law.

2. The concept of balance of interests in intellectual property law

From the above discussion, it can be seen that the issue of exclusivity of intellectual property rights has attracted more and more attention from the legal profession. In practice, especially after my country's accession to the WTO, litigation surrounding intellectual property rights continues to increase. In today's world of global trade integration, the correlation between intellectual property rights and domestic and international economic development is an unavoidable issue in legal research. Especially in technology licensing, with the increase in the number of patent applications and the expansion of the scope of protection, many companies and research institutions have fallen into an embarrassing situation. Technology that could have been freely used fell into the scope of patent protection of others and became a problem for further development, research and production. Business obstacles. The patent system that encourages innovation has even become a tool for some people to maliciously set up "litigation traps", hindering further economic development. For example, a DVD has as many as 1,500 valid patents from components to parts. If Chinese manufacturers want to successfully enter the international market, they must first obtain permission from foreign patent holders and pay considerable fees.

Faced with such a situation, countries around the world have gradually realized that they must make specific institutional arrangements based on the principle of stimulating the creation of knowledge products and facilitating the access and use of knowledge products by the public. Balancing the private interests of intellectual property owners and public interests is the cornerstone of the intellectual property legal system. [13] Therefore, in the intellectual property system itself, there are many targeted regulations to coordinate public interests. Such as fair use in copyright law and compulsory license in patent rights. The most important thing is that the protection of intellectual property has a time limit. Once it expires and the product enters the public domain, it becomes the common wealth of all mankind.

Therefore, fundamentally speaking, both intellectual property and antitrust laws focus on the long-term development of society.

3. The principle of balance - the basic principle of coordinating intellectual property and antitrust laws

Although my country currently seems to have few cases that include issues in the field of intellectual property in antitrust cases. , there is no unified standard in relevant judicial practice, but in fact the conflicts between the two mainly focus on two aspects. First, over-protection of intellectual property rights will cause an imbalance in competition, which is not tolerated by anti-monopoly laws. Second, detailed review before and after anti-monopoly laws will destroy the autonomy of competing subjects and their enthusiasm for innovation. Therefore, to find an appropriate standard, we must conduct case analysis based on maximizing competitive interests and find a balance between the interests of both parties to the contract and the interests of the public. The author believes that this standard cannot be established through clear and specific provisions of the law, but basically relies on the self-evaluation of market entities and the individual case determination of judges.

First, it is clear that the management of knowledge products needs to be more regulated by contract law and intellectual property law to ensure personal will and social innovation. "Licensed use should benefit the copyright holder: this is part of the reason copyright and contract law are designed. Success in the marketplace does not deprive a company of the benefits it has gained through copyright and contract law." [14] Therefore, counter Monopoly is not against big business. The monopoly formed by large enterprises due to innovation and technological progress is not a real monopoly. The monopoly profits included in entrepreneurial profits can be regarded as bonuses for successful people.

This kind of "technical monopoly" enterprise has to compete with enterprises with original technology and products on the one hand, and is threatened by potential competition on the other hand, so it is actually still in competition. . [15]

This passage shows that the formation of a monopoly position does not necessarily eliminate competition. In order to maintain its position, monopolies must work harder to improve technology and reduce costs. If this is the case, then consumers will ultimately benefit. This can be proven from the development of the IT industry.

In addition, from the perspective of contract law, antitrust law is a correction to the expression of intention of both parties.

This kind of correction should occur in obviously unfair situations, such as one party using its advantageous position to impose unreasonable obligations or prices on the other party, resulting in "the strong being stronger and the weak being weaker", beyond This is the space where antitrust law can play a role. In the "first screen" terms between Microsoft and computer equipment manufacturers, Microsoft does not impose unreasonable restrictions on the settings and display of the "first screen", nor does it restrict manufacturers and consumers from using the "second screen" After one screen” the screen was redesigned. As the author's point of view in the article COPYRIGHT, LICENSING, AND THE "FIRST SCREEN" is, under the principle of contractual autonomy, a license agreement cannot only protect the interests of the licensor. Overall, the licensing contract is a game process, because the balance of interests between both parties will inevitably be reflected in the price of the contract. The more rights acquired, the higher the price paid. Walter from Germany? Eugen said: Freedom of contract "is indispensable. Without the free contract of individuals from the economic planning of families and enterprises, there can be no regulation of daily economic processes through perfect competition." [16] Moreover, this "first screen" clause can enable consumers to receive stable and low-cost services by reducing training costs, conducting quality control, clarifying trademark identification, etc., and ultimately increasing social benefits by reducing transaction costs. . On the basis of the "reasonable principle", it can be considered that the "first screen" clause is not the result of complete abuse of rights. If antitrust review must be introduced into this clause, it will destroy the agreement of the contract and destroy the free choice of market entities in a competitive environment. This will in turn pay the price of harming social and technological progress. This is an issue that antitrust law must consider. . Therefore, only by specifically analyzing contract terms using economic methods and weighing the interests of multiple parties can we find the scope for antitrust law.

Second, anti-monopoly law cannot completely withdraw from the field of intellectual property protection. As long as this "protection" becomes an umbrella that undermines competition, anti-monopoly law should be duty-bound to regulate this to ensure the stability of the competitive structure. healthy development.

Facts have shown that freedom of contract sometimes cannot protect competition between supply and demand sides of the market, and can even be used to eliminate competition, as evidenced by the establishment of cartels and other monopoly organizations. Enterprises use freedom of contract to establish monopoly organizations, and monopoly organizations use freedom of contract to create mandatory contracts. "Freedom of contract" often becomes an excuse for monopoly groups to prove that they are protected by law and enjoy corresponding rights. [17] It is precisely because traditional intellectual property law and contract law overemphasize autonomy of will that the abuse of rights may become a legal phenomenon. In intellectual property law, the law confers privileges to right holders and demarcates a closed space for the benefits of intellectual products, which can only be enjoyed exclusively by the right holders, which naturally leads to conflicts with other stakeholders in society.

Just like the first case at the beginning of this article, courts in the United States and Europe respectively determined that Microsoft's actions violated antitrust laws in antitrust litigation and made judgments that were unfavorable to Microsoft. From such facts, it can be seen that the antitrust law has every reason to intervene and regulate the monopoly phenomenon in the field of intellectual property rights. This is due to the nature of antitrust. Therefore, despite the "private rights" barriers of "exclusivity" and the rhetoric of freedom of contract, the rationality of the intervention of antitrust laws should be recognized from the perspective of the long-term interests of society.

Third, the conclusion of this article is that the relationship between intellectual property and antitrust law no longer simply treats intellectual property as a monopoly exemption, but seeks a solution in terms of protecting intellectual property and preventing rights holders from abusing their rights. Balance point; restrictions on competition related to intellectual property rights should also be included in the scope of antitrust regulations. When antitrusting a company, it is no longer just its size that is considered, but more importantly, whether it uses its size to restrict competition and harm the interests of consumers. [18]

As the U.S. Supreme Court expressed its view in the Dell case: "Objective format standards, recognized through a fair process, have a 'substantial pro-competitive advantage'. By setting Standards can improve the applicability of products, thereby increasing consumer choices, and can also reduce production costs through the standardization of inputs and economic indicators, allowing new entrants to produce products according to current standards and reducing market entry barriers..." Overall, intellectual property and competition policy are concerned with technological progress and the ultimate interests of consumers. Enterprises hope to carry out technological transformation but at least prevent free-riding behavior, so intellectual property protection is essential. Market entities only have sufficient motivation to transform when they face competition. Therefore, creating a healthy competitive environment is the basis for economic development. Therefore, it is necessary to balance the interests between increasing competition and further technological transformation. Facing the complexity of economic life, cross-cutting issues between different fields of law are becoming more and more common. At this time, we need to correctly grasp the legislative implications of different departmental laws and promote the development of the overall interests of society.

Note:

[1] In June 2000, Microsoft filed an appeal, and the Court of Appeal made a judgment, basically confirming that Microsoft used anti-competitive means to maintain its dominance in computer operating system software. monopoly position, but denied the trial court's decision to extend the monopoly position to the field of browser software. On November 6, Microsoft settled with the Department of Justice and nine states that were among the plaintiffs. Since it has little relevance to the discussion of this article, it will not be introduced in detail. "Introduction to Economic Law Case Tutorial" edited by Xu Jie and Shi Jianzhong, page 204, Intellectual Property Press, September 2004 edition.

? See Ronald A. Cass: COPYRIGHT, LICENSING, AND THE “FIRST SCREEN”, source:

American Social Science Research Website www.ssrn.com

[2] Liu Pingzhou "Comparative Study on Intellectual Property and Property Rights" was published in "Intellectual Property" Issue 4, 2003

[3] "In keeping with the basic approach of the copyright law, copyright owners are given great freedom in deciding the terms on which to license their products. After all, the value of the copyright is the ability of the right owner to set terms expected to maximize the return from licensing. ”

See Ronald A. Cass： COPYRIGHT , LICENSING, AND THE "FIRST SCREEN".

[4] The author does not deny that the "exclusivity" of intellectual property rights has a time limit and is subject to fair use restrictions.

Therefore, the exclusivity discussed here is also relative and does not mean too extreme. The entire text of this article is based on the existing intellectual property system. It is not a question about intellectual property itself, but mainly some thoughts from the perspective of antitrust and overall social development. At the same time, I do not deny that the initial acquisition of intellectual property rights is also the result of the creative work of the rights holders under fair market competition.

[5] "Effective competition" is a goal model in the economic sense. In this model, competition is regarded as a means to achieve the interests of the overall economy and social welfare. This kind of The model is to establish a market structure conducive to economic development. As a legally operable target model, the key is how to establish a standard to evaluate whether competition in the market is effective competition. Based on the experience of other countries, the goal of establishing effective competition is mainly based on standardizing the competitive market structure. According to the theory of German Konsenbach, an optimized market structure requires multiple competitors in the market, their products are moderately differentiated, and the market is highly transparent.

Wang Xiaoye: "Competition Law Research" Press, 1999 edition, pp. 73-90

[6] Liu Ningyuan, Si Pingping, Lin Yanping: "International Antitrust Law", Shanghai People's Publishing House, September 2002 edition, pp. 7 - Page 9

[7] “To the extent there has been a perceived conflict, however, it seems to stem from four principal areas of uncertainty: (a) the extent to which competitio policy is about short-run allocative efficiency or long-run dynamic efficiency, (b) whether market power should be inferred from the existence of an IPR, (c) certain distinctive economic characteristics of IPRs, and (d) whether a particular contract, license, or merger should be regarded as horizontal or vertical. ” See “competition policy and intellectual property rights”, OECD, committee on competition law and policy, DAFFE/DLP (98) 18 petition law, applied under a rule of reason standard, seems entirely adequate for distinguishing between "pro "

and anticompetitive tying in cases where the requisite market power is conferred through IPR. " See" competition policy and intellectual property rights ", OECD, committee on competition law and policy, DAFFE/DLP (98 ) 18

[11] "1. it should not be presumed that an intellectual property right creates or increases market power; 2. competition policy should acknowledge and respect the basic rights granted under patent law; 3. a licensing restriction should not be prohibited under competition law if it leads to a situation which is less anticompetitive than would occur if there were n

o license at all (i.e. competition agencies should not implicitly assume that if the restriction were prescribed, the license would still be granted). Where a licensing restriction fails this test, it should nevertheless be permitted under competition law if it is associated with sufficient actual or potential efficiency effects." See "competition policy and intellectual property rights", OECD, committee on competition law and policy, DAFFE/ DLP (98) 18

[12] Feng Xiaoqing's "The Theory of Balance of Interests: Theoretical Basis of Intellectual Property Law" is contained in "Intellectual Property"

[13] "But licensing should confer benefit on copyright owners: that is part of the design of copyright law and of contracts. And success in the marketplace does not dispossess a firm of the benefits that copyright law and contract generally convey." See Ronald A. Cass: COPYRIGHT, LICENSING, AND THE "FIRST SCREEN"

[14] Liu Bingyong, "On the Theoretical Basis of Antitrust" was published in "Jiangsu Social Sciences" Issue 5, 2002

[15] Liu Bingyong "On the Theoretical Basis of Anti-Monopoly" published in "Jiangsu Social Sciences" Issue 5, 2002

[16] Liu Bingyong "On the Theoretical Basis of Anti-Monopoly" published in "Jiangsu Social Sciences" 2002 Issue 5

[17] Ma Hongyu "Looking at the Development Trend of Anti-Monopoly Law from the "Microsoft" Case - Also Discussing Several Enlightenments to China's Anti-Monopoly Legislation" published in "Journal of Lanzhou Business University" 2001 Issue 4 of the year