Immaterialgüter- und Wettbewerbsrecht

Analysis of the Copyright-competition Interaction Issue in the European Union with a Special View on Licensing and digital markets

In the dynamic times of digitalization and rise of creative industries, the copyright-competition interaction is still left unresolved despite all of the discussions in case law and doctrine. In dealing with the issue, there is a need for a comprehensive approach that acknowledges particularities of copyright and competition.

Letzte Änderung: 08.02.21

The copyright-competition interaction is an interdisciplinary and complex legal and economic issue. Cases concerning the copyright-competition interaction must take into account the understanding of several divergent fields. Thus, this issue comprises copyright law, competition law, economics, at least basic understanding of an industry in a matter and its effects on a market etc.

Although the issue is not a novelty, there is still an on-going debate on the copyright-competition interaction. No unitary approach in dealing with this matter has been produced. As one said in dealing with this specific issue: ‘the law has developed piecemeal without any explicit framework or general principle, and the Court has never explained the principles comprehensively’.

The research identified several problems in approaching this specific issue. Firstly, commentators and authorities tend to 'force' utter approaches in regards to the relationship between copyright law and competition law. Some insist on the conflicting relation while others tend to argue joint objectives and complementarity between the two areas of law. Secondly, when discussing this matter, the different intellectual property rights are rarely distinguished in practice and theory. Thus, legal and economic characteristics and effects of different intellectual property are often mixed and not properly addressed. Commonly, characteristics of patents are attributed to other intellectual property rights, thereat not taking into consideration their specific characteristics. That is especially problematic for copyright as non-industrial intellectual property right. Thirdly, the practice has often neglected economic components in the copyright-competition interaction. Although there is a tendency in the EU advocating a 'more economic approach' and focus on dynamic efficiency, still it seems that we are far from the adequate approach to the copyright-competition interaction issue.

To deal with the identified problems and make a step forward in settling the issue, this research suggests acknowledging the peaceful coexistence between copyright law and competition law. If one starts with the fundamentals of copyright law and competition law, the copyright-competition interaction can be observed through the existent principles of both laws - limitations of the exercise of copyright and tailored competition assessment. After analysing the relevant case-law and doctrine, the research produces a specific approach and method of analysis of the copyright-competition interaction issue. At the end, a special view is given to the digital industry sector and potential further developments in this field.



Dino Gliha


Prof. Dr. Sc. Siniša Petrović (University of Zagreb)


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