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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: [email protected]
