Ted Shapiro and Brigitte Lindner
The judgment of the European Court of Justice in the so-called Premier League cases (Joined Cases C-403/08 and C-429/08), which continues to generate intense debate, has serious implications for copyright, conditional access protection, the fundamental freedom to provide services and the application of competition law. While the judgment has often been looked at from the angle of fundamental freedoms and competition law, this contribution focuses on the copyright aspects of the case. It reviews the Court's assessment of the IPR subject-matter at stake as well as the scope of the reproduction right, the concept of communication to the public under Article 3 Directive 2001/29/EC and the potential meaning of ‘appropriate remuneration’. As the Court of Justice continues to produce copyright decisions at an unrelenting pace, it is important to understand the approach that is emerging. The goal of this article is to make a modest contribution to that understanding.
Brigitte Lindner and Jan Bernd Nordemann
In the absence of a harmonized legislative framework for cross-border copyright licensing in the EU, the legal situation is determined by a colourful patchwork of European and national law. Uncertainties may arise in particular from differences in the concepts of authorship and ownership of rights, moral rights and questions of transferability coupled with the vagaries of mandatory provisions in private international law. A creative and pragmatic approach is therefore called for when implementing cross-border licensing schemes. In European law, the competition regulations have a huge practical significance for cross-border, individual licensing agreements. Art. 101 TFEU prohibits companies from concluding agreements that restrict competition, which may in turn affect trade between member states. The so-called block exemption regulations (BER) Technology Transfer helps to assess licensing agreements under Art. 101 TFEU. Help is also provided by the European Commission in the guidelines for the BER Technology Transfer. Furthermore, case law from the CJEU and national member state courts needs to be taken into account. Moreover, Article 102 TFEU prohibits the abuse of a dominant position. Parallel provisions to Articles 101 and 102 TFEU generally exist in the national competition legislation of the EU member states. These must also be observed for individual licensing agreements. The chapter, however, will only cover Articles 101 and 102 TFEU.