Law and Practice
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.
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