The Magill case (see Information Letter N.S. 178) caused considerable controversy when the European Commission held that the practice of British and Irish television networks of refusing to license their copyright in program schedules to independent magazines constituted an abuse of a dominant position contrary to Article 86 of the Treaty of Rome. The Commission's reasoning was that by refusing to grant licenses under their copyrights the television networks were preventing the development of a new product (for example, a periodical such as the TV GUIDE magazine published in the United States) and that this action was thus anti-competitive. The Commission's decision was upheld by the European Court of First Instance and has caused considerable concern about the possibility of introducing a compulsory license regime in Europe for reasons that seem trivial. The case was appealed to the European Court of Justice. Under the procedure of the European Court of Justice, the Advocate General assigned to the case gives an opinion as to how the case should be determined in open court prior to the court itself reaching its decision. The Advocate General has now given his opinion in this case. Essentially, he recommends that the court reverse the decisions made by the Commission and the Court of First Instance. While the Advocate General believes that under certain circumstances refusal to grant a license under intellectual property rights could be an abuse of a dominant position, this should only be the case where such a refusal would prevent the emergence of a noncompeting product. In the present situation, where the television networks produce their own magazines listing their program schedules, the potential new product that was prevented from emerging by the refusal to grant a license would have competed with products produced by the copyright owners. Use of copyright to prevent the emergence of products which would compete with the intellectual property right owner's own products should not be regarded as abuse of a dominant position, since in such a case the rights were merely being employed to fulfill their intended function. It remains to be seen whether the court will follow the Advocate General's reasoning.

June 1994 Index