Exclusive Rights and Anticompetitive Behaviours: the Uneasy Case of Copyright and Competition in the European and Italian Antitrust Practice
The present paper analyses the relationship between competition and copyright law, paying special attention to two recent antitrust proceedings, the Italian Groupe Canal+/Stream and the European NDC Health/IMS Health. In particular the article attempts to interpret the existence of objective conflict elements which seem to create interference between the two laws. This consideration leads to answering the following questions: if the antitrust enforcement in copyright domain is suitable and coherent with copyright itself, and if this enforcement is effective with the incentives system created by copyright law. In fact, on one hand copyright regulates the market by introducing incentives and constraints which stifle competition, and accepts a second best solution. On the other hand, antitrust law tries to push markets to their first best solution through the elimination of any obstacles to competition. This structural difference raises a dialectic between the two laws and any interference in enforcement is not easily solved. The most common solution adopted by European antitrust Authorities refers to an exceptional change of property rights through the essential facility doctrine. However, this solutions represents a regulatory act, thus reinforcing the idea that the weakening of possible anticompetitive effects of copyright passes through a direct intervention on copyright law rather than on the enforcement of antitrust law.
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- 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 415-442, September.
- 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 655-678, December.
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