EUROPEAN COURT OF JUSTICE RULES COPYRIGHT HOLDER MUST GRANT LICENSE
COPYRIGHT CANNOT BE USED TO CREATE AN ABUSIVE MONOPOLY
MAGILL PUBLISHING V. RADIOTELEFIS COURT HOLDS:
"so far as a dominant position is concerned, it is to be
remembered at the outset that mere ownership of an
intellectual property right cannot confer such a
position" - in other words copyright can not be used to
create an 'abusive' monopoly. (Extract of Professor Oppenheim Summary below)
Following is an message posted on cni-copright.
Note: first there must be a valid copyright before the concept of compulsory
licensing needs to even be discussed. So, it would be premature to discuss a
license of West copyrights when there is no basis for the copyright in the
first place. But, this decision provides some perspective.
Note: also that what is copyrightable in Europe differs under US Copyright
law, which is based upon the Constitution.
Alan Sugarman, HyperLaw.
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From: <charles@dis.strath.ac.uk> (Charles Oppenheim)
Professor Charles Oppenheim,
Dept. of Information Science,
University of Strathclyde,
Glasgow G1 1XH
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Herewith the press release on the Magill Case:
On Thursday April 6 1995 the European Court of Justice,
the highest level of judicial decision making in the
European Union (EU), gave its long awaited verdict on a
copyright case which may have wide ranging implications.
The case, colloqually known as the Magill case, concerned
a claim by an Irish weekly magazine (Magill) that the
Irish Television Service (RTE) was abusing a dominant
position by refusing permission to Magill to publish
weekly listings of the tv programmes to be broadcast by
RTE. RTE (and, at that time (1986), other tv stations in
the UK and Ireland), allowed newspapers and magazines to
publish daily listings without fee but restricted weekly
listings to their own publications and did not license
other publications to use them. Magill attempted to
publish weekly listings of RTE programmes, together with
programme information from UK tv stations which could be
received in Ireland. RTE obtained an injunction
preventing Magill from publishing the listings.
Magill appealed to the European Commission (EC) on the
grounds that, under Article 86 of the EU treaty, RTE was
abusing a dominant position and creating a restraint of
EU trade.
The EC supported the Magill appeal and ordered RTE and
the other stations to "supply ...third parties on request
and on a non-discriminatory basis with their individual
advanced weekly programme listings" The tv stations would
be entitled to ask for "reasonable" royalties.
The tv stations appealed to the European Court against
the EC's decision and, in agreeing to hear the appeal,
the court suspended the application of the EC's decision.
The court, in its first hearing, upheld the EC's
decision, in a judgement given in July 1991. RTE and the
other stations appealed this decision to the full Court.
It was the decision on this final appeal that was given
last Thursday.
Meantime, the UK copyright act of 1988 had changed the
rules regarding copyright on items such as tv listings
and the UK stations had given up their monopoly and
Magill had ceased publication! However, the case went
ahead.
Last Thursday the Court supported both the EC and the
lower court and decided that RTE had abused a dominant
position.
In the judgement the Court made certain statements
concerning copyright and abuse of a dominant position
which will probably lay the basis for the EC's future
interpretation of competition cases concerning copyright.
For example, the Court says:
"so far as a dominant position is concerned, it is to be
remembered at the outset that mere ownership of an
intellectual property right cannot confer such a
position" - in other words copyright can not be used to
create an 'abusive' monopoly.
and:
".... where the conduct of an undertaking in a dominant
position ... was the excercise of a right ... copyright,
such conduct cannot be reviewed in relation to Article
86" (as claimed by the tv stations); the Court says "the
[tv stations] refusal to provide basic information by
relying on national copyright provisions thus prevented
the appearance of a new product, a comprehensive weekly
guide to tv programmes,...... such refusal constitutes an
abuse .... of Article 86"
The Court also confirmed that abuse under Article 86 did
not have to affect cross border EU trade in order to be
condemned, it had only to be capable of affecting such
trade to become the subject of an EC ban.
The European Court also judged that the application of
the Berne [Copyright] Convention in these cases [intra EU
trade] is covered by "settled case law" [of the Court] to
the effect that such agreements entered into by Member
States before they joined the EU cannot be relied on in
intra [European] Community relations.
Finally, the Court confirmed that the EC has the right,
under existing legislation, to order undertakings to
license their products to others, when they are found to
be abusing their position.
The (possible) consequences for information products
The decision puts an end to the discussion of whether
copyright is "higher" in EU law than certain of the
competition provisions of the EU.
What is now clear is that if you have information which
you create as part of your activities and you are the
only creator of that information then you cannot use
copyright as a means of keeping the monopoly or refusing
to allow others to use the information.
It would appear, from this judgement, that, for example,
telephone number lists produced by telecommunication
operators can not be protected by copyright to the extent
that nobody else may publish such lists. Equally, it
would appear that certain information produced
exclusively by governments under legal provisions cannot
be exclusively exploited by the government, at least in
the EU.
Finally, the decision by the Court that copyright claims
cannot be used to prevent the appearance of a new product
would seem to open a number of opportunities.
10 April, 1995
- - - - -
Unfortunately, the full text of the judgement does not appear to be
available in machine readable form. European folk are trying to
establish the significance of the decision, but in essence it states
that if someone has the copyright to material that cannot be
reasonably obtained from any other source, they must give licenses
to third parties who demand it if failure to issue a license is an
abuse of monopoly and distorts the market.
Professor Charles Oppenheim,
Dept. of Information Science,
University of Strathclyde,
26 Richmond Street,
Glasgow G1 1XH
Tel 0141-552-4400; Fax 0141-553-1393; e mail charles@dis.strath.ac.uk
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Alan D. Sugarman Federal Appeals on Disc tm CD-ROM
President Opinions of US Court of Appeals
1993 to Date - All Circuits
HyperLaw, Inc. ®
P.O. Box 1176
New York, NY 10023
sugarman@hyperlaw.com 212-787-2811 212-496-4138(fax)
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