The Interface between Intellectual Property Rights and Competition Law – Fairness and Innovation[*]This article has been peer-reviewed.

By Hedvig Schmidt[**]Dr Hedvig Schmidt, Associate Professor in EU Law, Southampton Law School, University of Southampton (email: hschmidt@soton.ac.uk). I have no conflict of interest in writing this paper.

1. Introduction: Fairness and Innovation

‘Fairness’ is the new buzzword in competition law and policy – heavily promoted by Vestager[1]Niamh Dunne, ‘Fairness and the Challenge of Making Markets Work Better’ (2021) 84 The Modern Law Review 230. Dunne notes that Vestager invoked ‘fairness’ in 85% of her speeches in her first term in office, p. 238. during her reign as Competition Commissioner and now immersed into competition law, policies and the academic discussions through the Digital Markets Act.[2]OJ. 2022 L265/1 Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). The latter mentions the term no less than 90 times.[3]Linus J. Hoffmann ‘Fairness in the Digital Markets Act’ European Papers Vol. 8, 2023, No 1, pp. 17–23 (European Forum, 12 April 2023), p. 17. Fairness though is a difficult term to define and while we can probably all agree that we want to live in a fair society the question remains: what does that look like? As what appears fair to one person may not be so to another. Fairness effectively lies in the eyes of the beholder and as such it becomes a difficult legal term to grapple with.

An apt example of this is found in the interface of competition law and intellectual property (hereinafter IP) rights.