Research Handbooks in Intellectual Property series
Edited by Estelle Derclaye
Chapter 22: Do Whiffs of Misappropriation and Standards for Slavish Imitation Weaken the Foundations of IP Law?
21 European competition law and copyright: where do we stand? Where do we go? Valérie Laure Benabou1 Relations between copyright and competition law2 have become commonplace for European lawyers: the impact of the landmark decisions of the Commission or of the ECJ on the subject is such that not a day passes without comments or expectations on the topic in the press: it has become a sort of ‘trendy’ subject. The condemnation of Microsoft to the highest fine ever pronounced in a competition case for abuse of a dominant position whilst using its intellectual property right shows that the encounter between the two sets of rules can be anything but superficial. Yet, the history of this relationship is not old, nor are the rationales on which it has so far been grounded unmovable. If we look back, it appears that the relationship between those two bodies of regulations in Europe has been changing since the beginning. In the very early 1960s, competition law and copyright regarded each other with mutual neutrality. Various reasons underlay this peaceful coexistence; uncertainty about the Community’s jurisdiction on copyright issues; competition law being a new concept within Europe. The key to the application of competition rules was based for a while on the distinction between the existence and exercise of the monopoly, only the latter being subject to application of competition rules. But in fact, case law went further in the neutrality attitude; even exercise of copyright by the right holder was set aside...
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