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IP-Watch interns Brittany Ngo (Yale Graduate School of Public Health) and Caitlin McGivern (University of Law, London) talk about their Geneva experience in summer 2013. 2:42.

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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    EU General Court Clears Copyright Collecting Societies Of Antitrust Charges

    Published on 12 April 2013 @ 6:51 pm

    By for Intellectual Property Watch

    European copyright collecting societies are not engaged in a cartel but the European Commission was correct in finding that some of the provisions in their reciprocal representation should be barred, the EU General Court (GC) said in a 12 April ruling.

    The case, which pits the International Confederation of Societies and Authors (CISAC) and 24 of its members against the EC, could be appealed to the EU Court of Justice (ECJ). CISAC said the decision proves its contention that it was not engaged in a conspiracy to restrict competition, and that it has already done away with the complained-of clauses.

    Separately, the ECJ has been asked to tackle several key issues in a German matter involving standards-essential patents encumbered with a fair, reasonable and non-discriminatory (FRAND) licensing agreement.

    No Antitrust Violation Found

    The CISAC model reciprocal representation contract goes back to 1936, the General Court said. The ruling is here. The agreement its members sign non-binding and allows them to grant licences covering public performance rights of musical works not only in the offline world (e.g., concerts or radio) but on internet, cable or satellite broadcasts.

    Under the model agreements, each collecting society agrees, reciprocally, to grant rights over its repertoire to all of the other collecting societies for the purpose of exploiting those rights in their respective territories, the court said. Under the network created by those reciprocal contracts, each collecting society can propose a worldwide portfolio of music to commercial users, but only for use in its own territory.

    In 2000, RTL filed a complaint with the EC alleging that a CISAC member had refused to give it a European Community-wide licence for its music broadcasting services, the court said. In 2003, Music Choice Europe, which provides an internet radio and television broadcasting service, lodged a second complaint about the CISAC model contract.

    In a 16 July 2008 decision in Case COMP/C2/38.698 – CISAC), the EC, without imposing a fine, said that the model contracts’ membership and exclusivity clauses violated EU competition law, the court said. Specifically, it found that the membership clauses restricted authors’ ability to affiliate freely with the collecting society of their choice, and that the exclusivity provisions effectively gave all collecting societies, in the territories in which they were established, absolute territorial protection regarding other societies regarding the grant of licenses to commercial users.

    Moreover, the EC said, the collecting societies were engaged in a concerted practice by which each limited the right to grant licences relating to its repertory in the territory of another collecting society party to the agreement. It ordered the organisations to remove the membership and exclusivity provisions and stop acting as a cartel.

    The GC, however, ruled that the EC did not provide enough evidence to prove the existence of a concerted plan to restrict competition. However, it rejected the collecting societies’ request to reject the EC decision on the membership and exclusivity clauses.

    The EC “takes note” of the judgments, said Antoine Colombani, spokesman for Competition Commissioner Joaquín Almunia. The rulings confirm the EC’s findings that collecting societies were restricting competition by limiting authors’ ability to choose which society manages their copyrights, and that exclusivity clauses restrict competition, he told Intellectual Property Watch.

    The EC “notes that the General Court did not endorse, as a matter of evidence, that finding that coordination among collecting societies had taken place,” Colombani said. The EC will “carefully analyse the Court’s findings before deciding on the next steps to be taken.”

    “Major Victory” For Collecting Societies

    The ruling is a “major victory for us,” CISAC Legal and Public Affairs Director Gadi Oron told Intellectual Property Watch. Collecting societies argued all along that there was no conspiracy to hamper competition, and the GC upheld that view, he said.

    Moreover, Oron said, CISAC modified the complained-of membership and exclusivity provisions even before the 2008 EC decision, so didn’t appeal that part of the ruling. The GC decision is important because it recognises the ability of collecting organisation to protect their rights in foreign territories, he said. The EC never said territorial restrictions are barred, only that organisations can’t coordinate those restrictions, he said.

    The annulment “does not mean a declaration of innocence,” Innocenzo Genna, an EU public affairs consultant specialising in telecom and internet issues, wrote on his radiobruxelleslibera blog. With regard to the existence of concerted practices, the GC was unconvinced of the evidence presented by the EC but that does not mean that the behaviour at issue is legitimate, he said. It will be up to the EC “to be more convincing” in the ECJ or to start another investigation to collect better evidence, he said.

    Nevertheless, the EC decision forced some collecting societies to modernise and develop practices which previously were rare, such as multi-territorial licences, Genna wrote. Although the sector continues to be “rigid and delayed by historical legacies and interests,” there is no doubt that change has begun, he said.

    That change is likely to come via legislation now under discussion in the European Parliament and Council to update rules governing collective management, Genna said. CISAC welcomes the directive because it will add confidence to the system, Oron said.

    ECJ to Consider FRAND Patent Issue

    Meanwhile, the EU high court has been asked to step into a case involving the intersection of EU and German competition and patent law, the Jones Day law firm said in a 10 April antitrust alert. The questions revolve around whether the holder of a FRAND-encumbered standards-essential patent is entitled to obtain an injunction against a business infringing its patent. The ECJ’s answers “may provide clarity to this hotly contested topic sooner than expected,” the firm said.

    In most significant jurisdictions, the plaintiff in a patent infringement case can seek an injunction preventing the accused infringer from continuing to practice the inventions claimed in the patent, the alert said. Some defendants, however, have argued that when a patent is a standards-essential patent subject to a FRAND licensing commitment, the patent holder should be barred from obtaining injunctive relief, it said.

    In a case involving a patentee seeking to enforce a patent relating to the Long Term Evolution (LTE) mobile telecommunications standard, the Regional Court of Düsseldorf has asked the ECJ to clarify aspects of the FRAND defence. The EC is investigating several FRAND antitrust cases, but high court action could fast-forward the legal discussion on the issue, Jones Day said.

    Dugie Standeford may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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