Beyond Microsoft : Intellectual Property, Peer Production and the Law's Concern with Market Dominance

This paper argues that in the United States and the European Union's efforts to fine-tune the analytics of regulating innovation through antitrust or competition law, and in particular with regard to refusals to license, it would be timely to consider 'wikinomics', or peer production, as well as the conditions that make this production possible. Wikinomics may offer a perspective for reconciling the need to preserve the incentive to innovate with the desire to promote effective competition in certain intellectual property (IP) markets. IP owners have cited digitisation and advances in mass communication to justify the need for stronger legislative protection in order to safeguard their incentives to innovate. Ironically, these same forces may now offer them a limited sanctuary against compulsory access under competition law. IP markets today are more highly porous than ever before. Technological change has provided entrants and competitors with unprecedented access to alternative sources of basic infrastructure to build competing IP products. It may therefore no longer be accurate to estimate the anticompetitive potential of refusing to license IPRs in accordance with industrial-age market considerations