Antitrust and Compulsory Licensing in BRICS and Developing Countries

Compulsory licensing is a powerful tool for broadening access to inventions protected by intellectual property rights without the rights owner consent, and is highly disciplined by International Law and individual countries legislation. Although compatible with the WTO rules, compulsory licensing has rarely been used despite being an available competition policy instrument (i.e. antitrust remedy) in most jurisdictions. It can in particular be a powerful policy tool—as concerns pharmaceuticals—to address the well-known health burden held by the population in the poorer nations. While compulsory licensing unambiguously improves access to (existent) health treatments and to protected technologies in general, its impact on profits and innovation rates is a more controversial issue. The economic literature has minimized the arguments against the use of the instrument, but competition policy has been too shy in using such a powerful tool, in particular in BRICS and other developing countries. This chapter overviews the lag between the possible and the actual use of compulsory licensing as an antitrust sanction and of mandatory licensing as a condition for merger approval, in particular in the BRICS and other developing countries.