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Beyond Refusal to Deal: A Cross-Atlantic View of Copyright, Competition and Innovation Policies

Ariel Katz, Paul-Erik Veel, Forthcoming, Antitrust Law Journal, SSRN July 29, 2011.
NB: This article has been nominated by the Academic Steering Committee for the academic category, unilateral conducts section of the 2012 Antitrust Writing Awards. Click here for all winning-awards articles

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Readers vote is closed since March 1st, 2012. Readers’ vote has nominated 2 articles for each of the Awards. This short list has been communicated to the Board, with the articles nominated by the Steering Committees. The Board will decide on the award-winning articles on March 27, at the Awards ceremony to take place in DC. See vote results online here.

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Conventional wisdom holds that the European Union, through the application of its competition law, has opted to subordinate intellectual property rights in the pursuit of competitive markets to a much greater extent than has the United States. We argue that, at least in the context of copyright protection, this conventional wisdom is false. While European antitrust regulation of IPRs does presently seem much more robust and activist than American antitrust regulation of IPRs, focusing solely on one narrow aspect of antitrust doctrine — the treatment of a unilateral refusal to deal — tells less than half the story. Once various doctrines of copyright law are taken into account, the substantive difference between the European and American approaches not only narrows, but in some key respects is reversed. While European jurisdictions have relatively expansive copyright protection which may require antitrust intervention to check anti-competitive uses of copyrighted works, American copyright law provides stronger internal limits on copyright protection in a number of circumstances which thereby lessen the need for resort to antitrust law as an external check on anti-competitive uses of copyrighted works. Furthermore, when the broader impact that antitrust law might have on the exercise of IPRs in the US is considered (not only in substance, but also in antitrust process), it becomes apparent that in key respects, when innovative-competition is at stake, US law grants overall weaker copyright protection than that available in Europe. To the extent that this has contributed to the US comparative advantage in innovation, the US experience provides an example of “less (copyright) is more”.

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