COLLABORATIVE FRENEMIES: EXPLORING THE INTERPLAY BETWEEN INTELLECTUAL PROPERTY AND COMPETITION LAW IN GHANA
Keywords:
Intellectual Property, Competition Policy, Interplay, Monopolies, Free TradeAbstract
Intellectual property rights generally put right holders in a dominant position in the marketplace, and rightly so, as their rights grant them some time-limited monopolies. Competition policy, on the other hand, seeks to prevent the abuse of a dominant position by regulating competition to ensure a fair market. In view of the aforesaid, there appears to be a conflict between the two legal frameworks. There are, however, some attempts at responding to the concerns of competition policy in intellectual property laws. The paper recognizes the absence of a comprehensive competition regime in Ghana. Employing a doctrinal approach to data collection and analysis, the paper reviews the points of convergence and divergence between intellectual property laws and competition policy in Ghana. The paper briefly explores the successful and challenging resolution of IP and competition law conflicts in some African countries. The paper concludes that the attempts at addressing competition concerns by the use of intellectual property legal regimes are not enough. The paper calls for proactive steps to be taken toward the passage of a comprehensive competition legal regime to ensure a fairer market, thereby promoting free trade in Africa.
Downloads
References
‘Status of AfCFTA Ratification.’ <https://www.tralac.org/resources/infographic/13795-status-of-afcfta-ratification.html> accessed 7 February 2024
Any law, ‘Comprehensive Guide To Competition’ (Law Thought, 22 May 2023) <https://www.anylaw.com/media/2023/05/22/a-comprehensive-guide-to-competition-law/#:~:text=Competition%20law%20is%20a%20body%20of%20law%20that,other%20practices%20that%20restrict%20or%20limit%20marketplace%20competition.> accessed 14 February 2024
Bankole Sodipo, Intellectual Property Reform in Nigeria (1st edn, 2022)
Buthe T and Kigwiru VK, ‘The Spread of Competition Law and Policy in Africa: A Research Agenda’ [2020] African Journal of International Economic Law
Bytescare, ‘Copyright and Competition Law’ (24 August 2023) <https://medium.com/@bytescare/copyright-and-competition-law-4a8d7bb8029> accessed 7 February 2024
Cairn International, ‘“Regional Integration and Competition”.’ <https://www.cairn-int.info/article-E_RIDE_253_0333--regional-integration-and-competition.htm> accessed 7 February 2024
Cook P and others, Leading Issues in Competition, Regulation and Development (Edward Elgar Publishing 2004)
Cross T. J and K. Yu P, ‘Competition Law and Copyright Misuse’ (2008) <https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1386&context=facscholar> accessed 7 February 2024
Dube C, ‘Intellectual Property Rights and Competition Policy’
Dutz M and Khemani RS, ‘Competition Law & Policy’
Eagles I, ‘Copyright and Competition Collide. The Cambridge Law Journal, 64(3), 564–566. Http://Www.Jstor.Org/Stable/4500832’ [2005] Cambridge University Press
Ebokpo R, ‘Nigeria, Ecowas And The Road To The AfCFTA’ (20 February 2020)
Enyinnaya Uwadi, ‘Prospects and Challenges of Implementing Competition Law in Developing Countries: A Review of the Nigerian Federal Competition and Consumer Protection Act, 2019’
Faustin Kihwelo Paul, ‘Intellectual Property Rights Jurisprudence in Tanzania: Turning an Eye to the Commercial Division of the High Court’ (2006) 9 Blackwell Publishing Ltd 673
Fox EM and Bakhoum M, Making Markets Work for Africa: Markets, Development, and Competition Law in Sub-Saharan Africa (Oxford University Press 2019)
Gachuiri E, African Continental Free Trade Area Phase II Negotiations: A Space for a Competition Protocol? (UN 2020)
Howell BE and Potgieter PH, ‘Effective Competition and Ineffective Mobile Industry Regulation in South Africa’ (2022) 46 Telecommunications Policy 102317
Ibidapo-Obe O, Competition Law and Socio-Economic Advancement: Nigeria as a Case Study : Giving a Hungry Man a Silk Tie? Middlesex University, 2022
Ibrahim IA and Zoppolato DG, ‘Emerging Technologies and the Law: From “Catch Me If You Can” to “Law by Design”’ (2024) 13 Global Journal of Comparative Law 148
J. Richard G and J. Weinschel A, ‘Competition Policy for Intellectual Property: Balancing Competition and Reward’ <http://elsa.berkeley.edu/users/gilbert/wp/Antitrust_and_IP.pdf> accessed 7 February 2024
Jerobon RC, ‘The Interface Between Competition Law And Intellectual Property Law In Kenya’ (University of Nairobi 2016) <https://erepository.uonbi.ac.ke/bitstream/handle/11295/99140/Jerobon%20_The%20Interface%20Between%20Competition%20Law%20And%20Intellectual%20Property%20Law%20In%20Kenya.pdf?sequence=1> accessed 19 January 2025
Jerobon RC, ‘The Interface Between Competition Law And Intellectual Property Law In Kenya’ (University Of Nairobi 2016) <https://erepository.uonbi.ac.ke/bitstream/handle/11295/99140/Jerobon%20_The%20Interface%20Between%20Competition%20Law%20And%20Intellectual%20Property%20Law%20In%20Kenya.pdf?sequence=1>
Kaur Supreet, ‘Interface between Intellectual Property and Competition Law: Essential Facilities Doctrine’ (West Bengal National University of Juridical Sciences 2011) <https://ssrn.com/abstract=1802450 o> accessed 14 February 2024
Khemani RS, Competition Policy and Promotion of Investment, Economic Growth and Poverty Alleviation in Least Developed Countries (World Bank 2007)
Kihwelo PP, ‘Indigenous Knowledge: What Is It? How and Why Do We Protect It?: The Case of Tanzania’ (2005) 8 The Journal of World Intellectual Property 345
Koomson E, ‘Developing without a Competition Legislation: An Analysis of Competition Law in Ghana and Its Impact on Competition and Development’ [2020] SSRN Electronic Journal <https://www.ssrn.com/abstract=3903953> accessed 25 January 2025
Kunko IK, ‘Unfair Competition Law in Ghana: Unravelling the Scope, Evolving Jurisprudence, Challenges and Future Directions’ (2024) 19 Journal of Intellectual Property Law & Practice 853
Maggiolino M and Zoboli L, ‘121The Intersection Between Intellectual Property and Antitrust Law’ in Irene Calboli and Maria Lillà Montagnani (eds), Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives (Oxford University Press 2021) <https://doi.org/10.1093/oso/9780198826743.003.0009> accessed 30 August 2024
Mallya E, ‘Powers of the Fair Competition Commission in the Current Inquisitorial Approach of Handling Competition Complaints in Tanzania: A Lesson From South Africa’ [2023] SSRN Electronic Journal <https://www.ssrn.com/abstract=4351580> accessed 27 January 2025
Mwakatumbula HJ, Moshi GC and Mitomo H, ‘Consumer Protection in the Telecommunication Sector: A Comparative Institutional Analysis of Five African Countries’ (2019) 43 Telecommunications Policy 101808
Rafe Mazer and Philip Rowan, ‘Competition in Mobile Financial Services: Lessons from Kenya and Tanzania’ [2016] The African Journal of Information and Communication (AJIC) <https://ajic.wits.ac.za/article/view/13626> accessed 27 January 2025
Roscoe Pound, Outline of Jurisprudence, in Stone Julius 1870-1964
Rotich Caroline Jerobon, ‘Rotich Caroline Jerobon, “The Interface between Competition Law and Intellectual Property Law in Kenya”,2016’ (University Of Nairobi College Of Humanities And Social Sciences 2016)
Shashank Jain and Sunita Tripathy, ‘Intellectual Property and Competition Laws: Jural Corelatives’ (2007) 12 224
Singh A, ‘Patent and Competition Policies: What Is the Degree of Compatibility’ <https://www.globalpatentfiling.com/blog/patents-and-competition-policies-what-degree-compatibility?utm_source=mondaq&utm_medium=syndication&utm_term=Intellectual-Property&utm_content=articleoriginal&utm_campaign=article> accessed 7 February 2024
Tiwari SP, ‘Organizational Competitiveness and Digital Governance Challenges’ [2022] SSRN Electronic Journal <https://www.ssrn.com/abstract=4068523> accessed 27 January 2025
Trade Law Centre, ‘AFCFTA Frequently Asked Question’ (2023) <https://www.tralac.org/documents/resources/faqs/4621-updated-tralac-afcfta-faqs/file.html-> accessed 7 February 2024
Whish R and Bailey D, ‘Competition Law’, Oxford University Press (2012)
World Intellectual Property Organization, ‘Patent Law and Competition.’ <https://www.wipo.int/patent-law/en/developments/competition.html> accessed 7 February 2024
STATUTES
Agreement establishing the African Continental Free Trade Area
Banks and Specialized Deposit-Taking Institutions Act, 2016 (Act 930)
Competition Act 89 of 1998 of South Africa
Competition Act No. 12 of 2010 of Kenya
Copyright Regulation, 2010 (L.I 1962)
ECOWAS Regional Competition Policy Framework
Electronic Communications Act, 2008 (Act 775)
Fair Competition Act of 2003 (Act 8 of 2003) of Tanzania
Industrial Designs Act, 2003 (ACT 660)
Minerals and Mining Act, 2006 (Act 703)
National Petroleum Authority Act, 2005 (Act 691)
Patent Act, 2003 (Act 657)
Protection Against Unfair Competition Act, 2000 (ACT 589)
Protocol to the agreement establishing African Continental Free Trade Area on Competition Policy (AfCFTA Protocol)
Securities Industry Act, 2016 (Act 929)
Sherman Anti-Trust Act (1890) of the United States of America
Supplementary Act a/sa.1/06/08 adopting community competition rules and the modalities of their application within ECOWAS
Supplementary Act a/sa.2/12/08 on the establishment, functions and operation of the regional competition authority for ECOWAS
The Copyright Act, 2005 (Act 690)
Trademarks Act, 2004 (Act 664)
CASE LAWS
Implex Projects Limited Suing per its Lawful Attorney and/or Representative Serboat Electrical Ltd V. Oware Wiafe And Gariel Boakye Suit No. OCC/31/08
In re Independent Service Organizations Antitrust Litigation, 168 F.R.D. 651 (D. Kan. 1996)
Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 528- 29 (6th Cir. 2004).
Microsoft Corp. v. Commission (2007; T-201/04
NDC Health v. IMS Health [2004] All E.R. (E.C.) 813
Parke, Davis, v Probel Case C-24/67[1968] ECR 55
Ransome-Kuti V. Phonogram Ltd. [1976] 1 GLR 220-223
Rhone-Poulence SA v. Ghana National Trading Corporation (1972) 2 GLR 109
Robert Ashie Kotei Ventures Vrs Sadat Car Accessories Enterprise And The Registrar Of Trademark Suit No. Ipr/8/07
RTE and ITP v Commission 7RTE and ITP v Cameroon (Magill) joined cases C-241/91 P and C242/91P[1995] ECR 1-743
The British case of LB (Plastics) Ltd. v.Swish Products Ltd [1979] UKHL J0201-2
United States of America v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001)
United States of America v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001)
Volvo v Veng [1988] C-223/87 ECR 6211, [1989] 4 CMLR 122.
