Sixth Euro-Asia IP Conference Taipei, 12 June 2015 Supply and Creative Use Markets: Impact of Competition Law Prof. Dr. Martin Senftleben VU 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

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