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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, May 01, 2004ECJ on compulsory Copyright Licenses.On April 29, 2004 the European Court of Justice (ECJ) has published a landmark decision in the case  C-418/01 concerning compulsory copyright licenses.
By a first question, the Regional Court of Frankfurt/Main had asked, essentially, whether the refusal to grant a licence to use a brick structure for the presentation of regional sales data by an undertaking in a dominant position which owns the copyright to another undertaking which also wishes to provide such data in the same Member State, but which, because potential users are unfavourable to it, cannot develop an alternative brick structure for the presentation of the data that it proposes to offer, constitutes an abuse of a dominant position within the meaning of Article 82 EC. By a second question, the Frankfurt Regional Court questions the effect that the degree of participation by users may have on the development of a brick structure, protected by copyright and owned by a dominant undertaking, on the determination of whether the refusal by that undertaking to grant a licence to use that structure, is abusive. By its third question, the national court is uncertain, in the same context and for the purposes of the same assessment, as to the effect of the outlay, particularly in terms of cost, that potential users have to provide in order to be able to purchase market studies presented on the basis of a structure other than that protected by copyright. Now, the ECJ has determined that: "[...] For the purposes of examining whether the refusal by an undertaking in a dominant position to grant a licence for a brick structure protected by copyright which it owns is abusive, the degree of participation by users in the development of that structure and the outlay, particularly in terms of cost, on the part of potential users in order to purchase studies on regional sales of pharmaceutical products presented on the basis of an alternative structure are factors which must be taken into consideration in order to determine whether the protected structure is indispensable to the marketing of studies of that kind.In particular, the very last statement sounds somewhat strange: "[An abuse of a dominant position is given only if] the refusal is such as to reserve to the copyright owner the market for the supply of data on sales of pharmaceutical products in the Member State concerned by eliminating all competition on that market." "All competition on that market"? What can this phrase mean? Can, under such case law, compulsory licensing as a potential countermeasure against the abuse of a dominant position ever be enforced? How should this "elimination of all competition" ever be measured reliably? Of course, it should be kept in mind that this case will most likely be exploited by companies like Microsoft. And, perhaps the gist thereof might one day even be applied by the courts in patent cases. Will the practical impact of the EU competition law diminish so far? [UPDATE: See e.g. Reuters via News.Com: "An intellectual property case at the EU's highest court on Thursday sparked a fresh clash between Microsoft and the European Commission over whether the ruling would strengthen the EU executive's case. [...]"]
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