The current issue of the Journal of European Competition Law & Practice (JECLP), for example, carries a piece which addresses a technical and difficult area involving the confidentiality of corporate statements. In his article "Leniency Programmes and Protection of Confidentiality: The Experience of the European Commission", Antonio Caruso amplifies on the following theme, as described in his abstract:
"The principle of confidentiality of leniency submissions is a key point of the EU Leniency Programme. Largely drawn from the functioning of the US programme, the EU Leniency Programme gradually strengthened the protection of the confidentiality of leniency submissions, in order not to put at a disadvantage leniency applicants compared to non-applicants. Protection is nevertheless not absolute and varies depending on the entities that interact with the Commission, such as parties to the proceedings, third parties, foreign, EU Member States' judges or other authorities.
The legal framework is complex: leniency submissions are covered by the notion of ‘professional secrecy’ (Art. 339 of TFEU) and considered in principle confidential, for the purposes of Regulation 1049/2001 and the publication of decisions. Their disclosure is subject to very specific conditions before judges/national authorities. Whereas EU Courts will be prompted in forthcoming key cases to scrutinize the status of confidentiality of leniency submissions under Regulation 1049/2001 and other regimes, Commission policy remains aimed at protecting the confidential status of corporate statements in all circumstances, whereas enabling disclosure of pre-existing documents only subject to certain conditions".Available on advance access is a somewhat less intimidating topic for mainline IP practice: the Current Intelligence note by Christopher Stothers (incidentally, a member of the JIPLP editorial board), "Trade mark owner can object to resale of ‘perfume testers’".
Another periodical from the same stable is the International Journal of Law and Information Technology (IJLIT). The most recent issue (click here for contents) features "Interoperability-Centric Problems: New Challenges and Legal Solutions" by Turgut Ayhan Beydogan. According to the abstract,
"Interoperability, having the potential to be leverage for spurring follow-on innovation and competitive impulses in the network environment, is attributed to a number of mandatory solutions under EU Directives as well as standardisation efforts. While generally interoperability requirements are determined in a disjunctive and pro-competitive manner in separate industries, convergence turns interoperability into a common problem against the development of ICTs, and renders policy-making a critical venture-point on antitrust and IPR policy. Simply mandating the incumbents, who enjoy economies of scale or creating formally-set standards for each controversial and specific case, would not yield the intended results in terms of a self-sustaining marketplace with a high-level innovation. To create such an environment, both intra- and inter-platform interoperability should be encouraged with a macro and long-term ICT perspective, called the ‘holistic approach’ within the context of this study.
In the study, the individual policy choices pertaining to specific industries are discussed primarily, and a set of notorious cases, e.g. Microsoft, for interoperability treatment are given, aiming to elaborate on the emerging concerns surrounding innovation, IPRs and standardisation including NGN-related challenges. It is resulted from the discussions that market players would not be able to cope with the IP-based threats and possible bottlenecks of an NGN environment without the responsive solutions that emerge out of consortias, neo-traditional SSOs near EU-wide recommendations and atypical interventions. Ultimately it is concluded that, without the diagnosis and cure of service-level interoperability challenges as well as network-level threats in a timely and co-operative manner that is crystallised in the “holistic approach” embodying all the three ICT industries, neither newly-built NGNs nor IP-based convergence would bring out the intended level of innovative end-to-end services".
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