Swinburne Copyright Talk - Anti-Competitiveness

Ida Madieha Abdul Ghani Azmi, Ph.D (Lon) Associate Professor, Private Law Department, International Islamic University Malaysia writes:

"In Malaysia, there is no particular concern about the current practices of the intellectual property right-holders. This is because the respect for intellectual property rights is still waning and the public still needs to be educated about the values of respecting intellectual property rights. This means that the interface between intellectual property rights and competition policy is largely unexplored and ignored. However, in lieu of the TRIPs agreement,9 there is a need to establish a framework for competition laws as we move towards globalisation, trade liberalization and harmonization of laws".

"With regards to copyright, the main concern relates to the imposition of restrictive conditions contained in copyright licences or assignments, refusal to supply, tying arrangements and blanket licensing. Whether these types of conducts and activities may be considered as anti-competitive is subject to vigorous interpretation by the courts of law in many jurisdictions".

"The developed countries have a rich tradition and long history of balancing private rights and public rights in the sphere of intellectual property. To them the idea of curtailing the conduct and activities of intellectual property proprietor is nothing new... it is felt that if we were to focus on the conduct rather than the form of control, we will have a better informed view of the present tension between intellectual property and competition law. With respect to Malaysia, this should not be a daunting exercise as notions such as 'dominant position' and 'substantial lessening of competition" is already present in Communication and Multimedia Act 1998. What is required is a simple extension of these principles to other markets and industries.

However, the first thing we have to embrace is the notion that monopolies and restrictive practices may and usually do operate against the public interest. Hence, it is desirable that we introduce legislation whereby all unjustified anti-competitive practices are unconditionally prohibited, restricted and curtailed".