Antitrust Immunities Issue Still Remains on the Agenda

6 october 2015

«Today we raise very serious, yet unresolved issues on the interface between the Russian competition policy, the antitrust legislation and the way they should relate to such legal category as rights to intellectual activity, " said Andrei Tsiganov, the Deputy Head of the Russian Federal Antimonopoly Service (FAS), opening a round table "Ways to improve the efficiency of competition policy in relations to the rights of intellectual property" at the Analytical Center.

"We are here to learn experts' opinions, and to find solutions to the problem. It is necessary to understand whether it is possible to consider the abuse of the rights of intellectual activity as a violation of the antitrust laws when it leads to monopolization of the market and limits competition. Or Russia needs to follow the path of the exceptions under which the results of intellectual activity are not subject to antitrust laws."

During the event, experts spoke on the application of antitrust exemptions for the rights to RIA, the application of antitrust laws to the relationship concerning the treatment of RIA and products derived from their use, as well as possible ways to improve the effectiveness of competition policy in this area.

Experts pointed out that the issue of anti-trust immunities for implementing exclusive rights to the RIA (Part 4 of Article 10 and Part 9 of Article 11 of the Law on Protection of Competition), more than a year is the subject of expert discussions, and a valid mode of such immunities is still on the agenda of the Russian Government. "Those who want to waive the immunity usually appeal to antitrust practice, the experience of developed countries and the creation of conditions for the development of a new class of innovative companies. The other side that wants to save the immunities, claims that the existing provisions of the law are sufficient for the effective resolution of issues, and the first-priortiy task is to create a class of copyright holders," said Tatiana Radchenko, the Head of the Department for Competition Policy of the Analytical Center. Another argument is associated with the preservation of incentives for investments in RIA, the expert added.

In her speech, Ms. Radchenko presented results of a study on possible ways to increase the effectiveness of competition policy in relations to the rights to RIA. "We do not take sides, we only offer directions of development of the situation," the expert said. Ms. Radchenko talked about the experience of the US, the EU, Japan, China, Brazil and India. However, she believes that Russia should not adhere to a particular model and transport practices of developed countries, as this country has a completely different economic situation. "With regard to the judicial practice, differences in the interpretation of contracts characteristics by the courts and the antitrust agency are observed," said the expert. In her opinion, the judicial practice under the 10th and 11th articles of the Law "On Protection of Competition", where exceptions to the rights to the RIA have been applied or could have been applied, is not sufficient to draw conclusions about the way the rules work.

During the discussion different points of view were expressed. Some members of the industry are advocating that the rights to the RIA should not create a monopoly, while others believe that the competition authority that accustomed to working in the traditional markets cannot work in such a higher sphere, as the RIA.

The FAS Deputy Head considers that if any right can be abused, limiting a competition, a composition and a number of participants in the market, then this is what his department should deal with. "If it is not within primitive measures relating to the elimination of violations of the antimonopoly legislation, then in terms of positive measures aimed at the development of competitive conditions," the official said.