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Sanders, Anselm Kamperman --- "Do Whiffs of Misappropriation and Standards for Slavish Imitation Weaken the Foundations of IP Law?" [2009] ELECD 181; in Derclaye, Estelle (ed), "Research Handbook on the Future of EU Copyright" (Edward Elgar Publishing, 2009)

Book Title: Research Handbook on the Future of EU Copyright

Editor(s): Derclaye, Estelle

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847203922

Section: Chapter 22

Section Title: Do Whiffs of Misappropriation and Standards for Slavish Imitation Weaken the Foundations of IP Law?

Author(s): Sanders, Anselm Kamperman

Number of pages: 8

Extract:

21 European competition law and copyright:
where do we stand? Where do we go?
Valérie Laure Benabou1



Relations between copyright and competition law2 have become common-
place for European lawyers: the impact of the landmark decisions of the
Commission or of the ECJ on the subject is such that not a day passes without
comments or expectations on the topic in the press: it has become a sort of
`trendy' subject. The condemnation of Microsoft to the highest fine ever
pronounced in a competition case for abuse of a dominant position whilst
using its intellectual property right shows that the encounter between the two
sets of rules can be anything but superficial.
Yet, the history of this relationship is not old, nor are the rationales on
which it has so far been grounded unmovable. If we look back, it appears that
the relationship between those two bodies of regulations in Europe has been
changing since the beginning. In the very early 1960s, competition law and
copyright regarded each other with mutual neutrality. Various reasons under-
lay this peaceful coexistence; uncertainty about the Community's jurisdiction
on copyright issues; competition law being a new concept within Europe. The
key to the application of competition rules was based for a while on the
distinction between the existence and exercise of the monopoly, only the latter
being subject to application of competition rules. But in fact, case law went
further in the neutrality attitude; even exercise of copyright by the right holder
...