It is the starting point in some jurisdictions that if a licensing agreement has been breached the licensor may choose to base her claims against the licensee on either contract or IPR. This article argues that such a starting point should not be upheld. Not least because of the developments in EU law, the IPR systems contain special remedies and procedures which are systematically and unilaterally to the benefit of just one of the parties to a contract, viz the rights holder (licensor). The freedom to choose IPR against a contractual party ought to be limited to the minimum, ie to those instances where this is prescribed by law. In the recent judgment of the CJEU, C-666/18 IT Development SAS, the Court holds that a copyright’s holder/licensor must be able to rely on the remedies and procedures of IPRED. Consequently, freedom of choice between contract and IPR is guaranteed. It is pointed out how this Judgment only deals with IPRED and does not have any broader effect for the basic question of choice between contract and IPR outside of the scope of the IPRED. Therefore, freedom of choice could still be limited, and licensees shielded against the special remedies and procedures which are at rights holders disposal outside of IPRED.
Schovsbo, Jens and Riis, Thomas, Concurrent Liability in Contract and Intellectual Property: Licensing Agreements in Light of Case C-666/18, IT Development SAS (16 4, 2020).