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CROSS-BORDER COPYRIGHT LICENSING

Law and Practice

CARLO SCOLLO LAVIZZARI, RENÉ VILJOEN

Copyright Licensing can no longer be considered purely from the perspective of the licensor’s home territory. This practical and wide-ranging reference work provides comprehensive coverage of the law and practice of cross-border licensing in a number of major territories, including China, the EU, India, Mexico, Russia, Singapore, South Africa, and the USA. The book, written by expert authors with insight from practice and from their home jurisdictions, focuses on both copyright licensing and competition law and, specifically, the inter-relation between these legal fields. The book is uniquely structured to provide both thematic coverage and detailed analysis of each territory’s applicable laws and regulations, highlighting and addressing the legal issues that are most critical in and relevant to licensing practice. Cross-Border Copyright Licensing is an essential starting point for anyone considering or advising on the implementation or enforcement of a copyright licensing program, in either developed and emerging markets.
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Chapter 2: EUROPEAN UNION

Brigitte Lindner and Jan Bernd Nordemann

Extract

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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