Copyright and Antitrust Issues

Copyright and Antitrust Issues

Ramello, G.B., "Copyright and Antitrust Issues" . THE ECONOMICS OF COPYRIGHT, DEVELOPMENTS IN RESEARCH AND ANALYSIS, Wendy Gordon and Richard Watt, eds., Edward Elgar Publishers Ltd.

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    This paper examines the relationships between copyright and competition law, paying special attention to the elements of conflict which have repeatedly emerged from recent antitrust cases in both the United States and Europe. In particular, the thesis argued is that the framework of intellectual property rights is crucial to antitrust evaluations because of the deterministic relation which exists between property rights on the one hand, and market structure and modes of competition on the other. In consideration of this relationship, it will be shown that several purportedly anti-competitive behaviours are in reality of an ambiguous character when considered within the system of incentives defined by copyright. What is more, given that copyright is essentially a calculated restriction on competition introduced by legislators to correct a specific market failure (i.e., creation of a sub-optimal level of copyrightable works), it then becomes quite difficult to pursue anti-competitive behaviours in a manner consistent with the nature of copyright and the incentives system. The work also shows how scholars are confronted with a structural weakness in the economic theory, vis-a-vis the current needs of antitrust enforcement in markets regulated by copyright. This weakness is probably attributable to the fact that the theory principally grew out of a study of the structure and dynamics of the manufacturing industries, and has therefore produced analysis tools geared to that particular context. However such tools are not ideally suited to the markets of information goods protected by copyright, which have modes of competition that differ substantially from those of the sectors which produce tangible goods.

Facts on copyright

  • Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be freely used or exploited by anyone, as courts in the United States and the United Kingdom have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publically available. It is completely incorrect, for instance, that simply posting material on the Internet places the material into the public domain such that anyone can freely copy, adapt or commercially exploit the work. Apart from anything else, the material may have been posted by someone who had no right to do so, let alone the power to waive copyright.
  • Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for many works is either life of the author plus 50 years, or plus 70 years. Copyright in general always expires at the end of the year concerned, rather than on the exact date of the death of the author.
  • The author of an unpublished manuscript or little-known publication, which is remarkably similar to a popular novel, will have an uphill battle convincing a court that the popular novel infringes the copyright in their obscure work. Taking some precautionary steps may help to establish independent creation and authorship. For example, when a web designer designs a webpage (based upon his own work) under a contract for services, the webmaster owns the copyright in at least the underlying code of that website.

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