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Maggiolino, Mariateresa --- "Social Justice, Innovation and Antitrust Law" [2010] ELECD 659; in Flanagan, Anne; Montagnani, Lillà Maria (eds), "Intellectual Property Law" (Edward Elgar Publishing, 2010)

Book Title: Intellectual Property Law

Editor(s): Flanagan, Anne; Montagnani, Lillà Maria

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446274

Section: Chapter 8

Section Title: Social Justice, Innovation and Antitrust Law

Author(s): Maggiolino, Mariateresa

Number of pages: 22

Extract:

8. Social justice, innovation and
antitrust law
Mariateresa Maggiolino

1. THE ROLE THAT THE SOCIAL JUSTICE
PERSPECTIVE COULD HAVE PLAYED IN
SHAPING THE RELATIONSHIP BETWEEN
DOMINANT FIRMS' PROPRIETARY
INNOVATIONS AND ANTITRUST LAW

Pursuing `social justice' may mean supporting a non-discriminatory dis-
tribution of resources and opportunities among people to give them fair
treatment, a just share of collective wealth, and the right to affect social
and economic developments. Thus, endorsing a social justice approach
towards proprietary innovations, such as patented inventions and copy-
righted creations, may mean ­ as the previous chapters have shown ­
discussing whether the existing IPRs allow, on the one hand, inventors
and authors to receive a fair and just consideration for their efforts;1 and,
on the other hand, the whole society to benefit from the innovation, as
such, and from the spread of knowledge that each innovation entails and
triggers.2
Yet, how can a social justice perspective have relevance to antitrust rules
regarding dominant firms' conduct and, in particular, dominant firms'
conduct involving proprietary innovations?
Though promulgated in different years,3 in the United States and in
the European Union, section 2 of the Sherman Act and Article 102 of the


1 See Federico Morando, Copyright default rule: reconciling efficiency and

fairness, Chapter 2 in this book.
2 See Jerzy Koopman, Chapter 4 in this book.
3 In the United States such a `social justice' approach to antitrust law took

place in the years before the advent of the Chicago School, leading up to ...