In our Information Letter N.S. 178, we reported on a decision of the European Commission in a case commonly referred to by the name of one of the parties as "Magill". The decision ordered the British and Irish television networks to grant licenses under their copyrights in their program schedules to a magazine publisher to enable it to print a consolidated listing of programs on all channels similar to the TV GUIDE magazine in the United States. The networks publish their own magazines giving weekly listings and prior to this decision the television networks had only licensed newspapers to publish consolidated listings on a daily basis. The Commission had found this practice to be an abuse of a dominant position contrary to Article 86 of the Treaty of Rome (a provision roughly equivalent to Section 2 of the Sherman Act in the United States). The Commission's views were upheld by the court of first instance, but, as reported in our June 1994 Newsletter, on appeal to the European Court of Justice, these views were not endorsed by the Advocate General of that Court.

On April 6, 1995, the European Court finally gave its long-delayed decision on the case. Unfortunately, despite an intervention by the United States organization, Intellectual Property Owners, Inc., the court agreed with the Commission and the court of first instance, rather than with its own Advocate General. The Court did, however, hold that "mere ownership of an intellectual property right cannot confer such a (dominant) position". However, the court took the view that the television networks had a "de facto" monopoly over the information used to compile listings for television programs and that the refusal of the networks to allow use of this information so as to prevent "the appearance of a new product, a comprehensive weekly guide to television programmes, which the appellants did not offer and for which there was potential consumer demand" constituted an abuse of a dominant position.

Once this conclusion was reached, the Court had no difficulty in deciding that the imposition of a compulsory license under the networks' copyrights in their program schedules "was the only way of bringing the infringement (of Article 86) to an end".

Rather more worrying than the actual decision in the case, which so far as the United Kingdom was concerned was already effectively moot as a result of an amendment to the statute, is the rather cavalier way in which the Court dealt with the argument that the Berne Convention specifically grants to copyright owners the exclusive right of reproduction in copyrighted works, subject only to clearly defined exceptions set out in statute. The European Commission has proposed that all EU member states be required to adhere to the latest revision of the Berne Convention. However, the Court simply held that, as far as provisions of Berne that were in effect before the United Kingdom and Ireland joined the EEC were concerned, these "cannot be relied upon in intra-Community relations if ... the rights of non-member countries are not involved". So far as concerned revisions of Berne that became effective after the United Kingdom and Ireland joined the EEC, these also cannot be relied upon because to do so would in effect be to amend the Treaty of Rome, which can only be done by following the procedures set out in that treaty.

The decision of the Court is fact-specific and gives little guidance as to the situations in which compulsory licensing might be acceptable in the future. It should, however, be noted that compulsory licensing of patents, although not of copyrights, as a remedy for violation of competition laws is specifically provided for under the GATT-TRIPS Agreement and so it seems unlikely that this issue will disappear in the near future.