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Copyright and Antitrust Issues

This paper examines the relationships between copyright and competition law, paying special attention to the elements of conflict which have repeatedly emerged from recent antitrust cases in both the United States and Europe. In particular, the thesis argued is that the framework of intellectual property rights is crucial to antitrust evaluations because of the deterministic relation which exists between property rights on the one hand, and market structure and modes of competition on the other. In consideration of this relationship, it will be shown that several purportedly anti-competitive behaviours are in reality of an ambiguous character when considered within the system of incentives defined by copyright. What is more, given that copyright is essentially a calculated restriction on competition introduced by legislators to correct a specific market failure (i.e., creation of a sub-optimal level of copyrightable works), it then becomes quite difficult to pursue anti-competitive behaviours in a manner consistent with the nature of copyright and the incentives system. The work also shows how scholars are confronted with a structural weakness in the economic theory, vis-à-vis the current needs of antitrust enforcement in markets regulated by copyright. This weakness is probably attributable to the fact that the theory principally grew out of a study of the structure and dynamics of the manufacturing industries, and has therefore produced analysis tools geared to that particular context. However such tools are not ideally suited to the markets of information goods protected by copyright, which have modes of competition that differ substantially from those of the sectors which produce tangible goods.

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Paper provided by Cattaneo University (LIUC) in its series LIUC Papers in Economics with number 114.

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Length: 26 pages
Date of creation: Oct 2002
Date of revision:
Handle: RePEc:liu:liucec:114
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  1. Silva, Francesco & Ramello, Giovanni B, 2000. "Sound Recording Market: The Ambiguous Case of Copyright and Piracy," Industrial and Corporate Change, Oxford University Press, vol. 9(3), pages 415-42, September.
  2. Gilbert, Richard J & Newbery, David M G, 1982. "Preemptive Patenting and the Persistence of Monopoly," American Economic Review, American Economic Association, vol. 72(3), pages 514-26, June.
  3. David S. Evans & Richard Schmalensee, 2001. "Some Economic Aspects of Antitrust Analysis in Dynamically Competitive Industries," NBER Working Papers 8268, National Bureau of Economic Research, Inc.
  4. Besen, Stanley M., 1986. "Private copying, reproduction costs, and the supply of intellectual property," Information Economics and Policy, Elsevier, vol. 2(1), pages 5-22.
  5. Dennis W. Carlton & Robert H. Gertner, 2003. "Intellectual Property, Antitrust, and Strategic Behavior," NBER Chapters, in: Innovation Policy and the Economy, Volume 3, pages 29-60 National Bureau of Economic Research, Inc.
  6. Audretsch, David B. & Baumol, William J. & Burke, Andrew E., 2001. "Competition policy in dynamic markets," International Journal of Industrial Organization, Elsevier, vol. 19(5), pages 613-634, April.
  7. Landes, William M & Posner, Richard A, 1989. "An Economic Analysis of Copyright Law," The Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 325-63, June.
  8. Richard Schmalensee, 1978. "Entry Deterrence in the Ready-to-Eat Breakfast Cereal Industry," Bell Journal of Economics, The RAND Corporation, vol. 9(2), pages 305-327, Autumn.
  9. A. Marvasti, 2000. "Motion Pictures Industry: Economies of Scale and Trade," International Journal of the Economics of Business, Taylor & Francis Journals, vol. 7(1), pages 99-114.
  10. Anderson, Robert D, 1998. "The Interface between Competition Policy and Intellectual Property in the Context of the International Trading System," Journal of International Economic Law, Oxford University Press, vol. 1(4), pages 655-78, December.
  11. Templeman, Sydney, 1998. "Intellectual Property," Journal of International Economic Law, Oxford University Press, vol. 1(4), pages 603-06, December.
  12. Richard Schmalensee, 2000. "Antitrust Issues in Schumpeterian Industries," American Economic Review, American Economic Association, vol. 90(2), pages 192-196, May.
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