The Interplay between Antitrust Law and Intellectual Property Law in South Africa: A Critical Analysis of the OECD Recommendation on Intellectual Property Rights and Competition

Abstract

The interplay between competition law and intellectual property remains the subject of much debate. Intellectual property creates monopolistic rights to protect and reward innovation and incentivise creators; whilst competition law seeks to balance these monopolistic rights by maintaining an open and competitive market. Competition and intellectual property laws, however, share similar objectives, namely improving consumer welfare and encouraging innovation across markets. Competition law and intellectual property rights regimes are governed by separate legislative instruments; separate adjudicative bodies and have different applicable policy considerations. This paper analyses the relationship between competition and intellectual property laws, with a specific focus on the Organization for Economic Cooperation and Development (“OECD”) Recommendation on intellectual property rights and competition (“Recommendation”). This paper examines the historical context, legal framework, and most importantly the practical implications of this interplay, highlighting the challenges and opportunities it presents for fostering innovation, promoting competition, and safeguarding consumer welfare. In doing so, this paper outlines notable developments emanating from leading competition agencies across the globe.