1. 2015 Intellectual Property Forum ILST, Hsinchu, 10 June The Interplay of Copyright and Competition Law
Prof. Dr. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague

2. Competition law impact
applicable to copyright?

3. Contents Competition law arguments Application Case study
individual works
whole repertoire
Case study

4. Arguments

5. Discrimination Tying/bundling Forms of Abuse
competitive advantage for licensees, disadvantage for outsiders
Tying/bundling
obligation to also purchase other products/services as precondition for a license

6. Constructive refusal Outright refusal Refusal to license
terms and conditions too burdensome to be acceptable
Outright refusal
unwillingness to grant license at all

7. Access to essential facilities
exploitative abuse
preventing new or improved products/ services in spite of potential demand
exclusionary abuse
market leveraging by extending power to other, related markets

8. Application

9. individual work and creative use
Essential facility?
individual work and creative use

10. Relevant market demand perspective supply 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

11. to a whole repertoire from individual work
Essential facility?
to a whole repertoire
from individual work

12. Content aggregation copyright owners distributors
big music labels
broadcasting organizations
news providers
distributors
search engines
mass digitization projects
new or improved products
impact on secondary markets

13. Case Study

15. 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

16. 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?

17. also market leveraging?
Hyperlinking
also market leveraging?

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