The Challenges of IP Protection and Competition Enforcement: An Analysis of the Microsoft Decisions (US and EU) and Their Implications for South African IP and Competition Law: Lex Informatica Conference, 21st-23rd May 2008 Pretoria, South Africa

By Hlatshwayo, Nkonzo | Journal of Information, Law and Technology, January 2009 | Go to article overview

The Challenges of IP Protection and Competition Enforcement: An Analysis of the Microsoft Decisions (US and EU) and Their Implications for South African IP and Competition Law: Lex Informatica Conference, 21st-23rd May 2008 Pretoria, South Africa


Hlatshwayo, Nkonzo, Journal of Information, Law and Technology


1. Introduction

Microsoft Corporation's (Microsoft) pervasive influence in contemporary life, especially in the software industry, is beyond question. (1) A great majority of the papers presented at this conference were produced through various Microsoft software products. Those who had the occasion to undertake Internet research most likely used Internet Explorer which came as part of the operating system bought with their computers. Indeed, many attending this conference may be forgiven for thinking that only Microsoft operating systems and programmes are readily available for use in the business world today. This is far from the truth.

As a result of this growth in influence and importance, software developers have sought to protect their control over their products. In this connection, protection is achieved through a variety of means, including intellectual property law (patents and copyrights). As a measure of control, software developers preclude those who purchase their software either as Original Equipment Manufacturers (OEMs), direct consumers or competitors from reverse engineering the software. Even in terms of use, those who purchase software only acquire the licence to use the software, which comes with a plethora of limitations on the way in which the software could be used. Importantly, software developers are particularly careful to shield the details of their creations from competitors or potential competitors.

The enforcement actions taken by the anti-trust agencies in the United States of America (US) and the European Union (EU) in the last few years underscore Microsoft's influence over the software industry and the quest by the aforementioned agencies to preserve and/or maintain competition. What is, however, intriguing is that the Anti-trust Division of the Department of Justice in the US and the European Competition Commission (EC) in the European Union (EU) took divergent decisions in relation to essentially the same competition issues that arose in their respective jurisdictions, especially in respect of the remedies that were prescribed. The question is whether these differences flowed from mere jurisdictional approaches to these matters, or on the contrary, reflected deep seated ideological differences.

Given the stature and influence of both institutions in competition enforcement generally, and their influence over the enforcement approaches and policies of emerging markets such as South Africa, the question that arises is which enforcement policies are more suitable for South Africa. (2) The answer to this question will not only be dictated by the policy choices that South Africa may want to make, but are likely to be strongly influenced by the structure of the South African Competition Act itself. (3) Further, a number of regional developments could find South Africa looking to Europe for guidance on these matters.

April 2008 saw the inauguration of a regional competition authority in Africa, the COMESA Competition Commission. Although South Africa is not a member of COMESA, there is no doubt that its regulatory oversight will have a profound influence on South African companies doing business in Africa as well as on the South African Competition Commission. (4) More importantly, COMESA's competition regime draws heavily from the EC model. For this reason, it must be expected that its enforcement policies, especially around IP and Competition issues are likely to be influenced by EC jurisprudence.

At a national level, South Africa has always had competition regulation from as early as 1955. However, the last piece of legislation that is probably most familiar to some is the Maintenance and Promotion of Competition Act of 1979. This is the legislation that was replaced by the current Competition Act, No. 89 of 1998. The review of the South African competition regime came at a time when the whole SADC region was adorning itself with competition legislation. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Challenges of IP Protection and Competition Enforcement: An Analysis of the Microsoft Decisions (US and EU) and Their Implications for South African IP and Competition Law: Lex Informatica Conference, 21st-23rd May 2008 Pretoria, South Africa
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.