Sixth Euro-Asia IP Conference Taipei, 12 June 2015 Supply and Creative Use Markets: Impact of...

Sixth Euro-Asia IP Conference Taipei, 12 June 2015

Supply and Creative Use Markets: Impact of Competition Law

Prof. Dr. Martin SenftlebenVU University Amsterdam

Bird & Bird, The Hague

applicable to

copyright?

Competition law impact

Contents

• Competition law arguments

• Application

– individual works

– whole repertoire

• Case study

Arguments

Discrimination

competitive

advantage for

licensees,

disadvantage for

outsiders

Tying/bundling

obligation to also

purchase other

products/services

as precondition

for a license

Forms of Abuse

Constructive refusal

terms and

conditions too

burdensome to be

acceptable

Outright refusal

unwillingness

to grant

license at all

Refusal to license

exploitative abuse

preventing new or

improved products/

services in spite of

potential demand

exclusionary abuse

market leveraging

by extending

power to other,

related markets

Access to essential facilities

Application

individual work and

creative use

Essential facility?

Relevant market

• demand perspective

– substitutable for the creative user?

– focus on dominance with regard to a specific

information product

• supply perspective

– reputation, production basis, circle of customers

– focus on dominance of an individual enterprise

in a more general sense

• problem: freedom of contract on primary market

from individual

work

to a whole repertoire

Essential facility?

Content aggregation

• copyright owners

– big music labels

– broadcasting organizations

– news providers

• distributors

– search engines

– mass digitization projects

• new or improved products

• impact on secondary markets

Case Study

Hyperlinking

• basis for various products/services with

added value for users

• content aggregators

– news media overviews

– search engine services

• social media

– inclusion in blogs

– inclusion in social networking sites

Hyperlinking

• links to illegal sources covered?

• how to determine authorization?

– indications on the website

– use of technological standards

• refusal to use technological standards

= constructive refusal in the sense of competition law?

• relation with prohibition of formalities in copyright law?

also market

leveraging?

Hyperlinking

The end. Thank you!For publications, visit www.ssrn.com

and search for ‘senftleben’.

contact: m.r.f.senftleben@vu.nl