- a new right limited to activities that take place without motive of financial gain;
- this new right should make it legal to "share music between two or more parties, whether over Peer to Peer networks, wireless networks, email, CD, DVD, hard drives etc";
- it would be distinct from private copying;
- in exchange, Creators and rights holders would be entitled to receive a monthly license fee from each internet and wireless account in Canada (proposed: $5.00 per internet subscription, per month)
- this would make Technical Protection Measures obsolete, but not Rights Management Information (RMI) protection "since RMIs will assist in the identification of files and the attribution of rights without posing any problems for consumers".
As in other areas of EU competition law, the Guidelines foresee "save harbours", that is levels of market share and concentration below which anticompetive concern are unlikely.
Yet another example of the "more economic approach", it seems.
iPhone et les opérateurs télécoms: un joli exemple de concurrence verticale à l'intérieur de la filière
S. hinzu das kritische Sondergutachten der Monopolkommission.
Market size is the sum of all suppliers' annual turnover in the UK in that affected market; where a merger results in several affected markets, the relevant figure will be the aggregate size of all such markets. In case of rapid market growth or decline, this will be taken into account in calculating future market size and importance. "Below the £10 million market size threshold, the OFT would generally consider the market to be of insufficient importance to justify a reference", subject to some caveats:
- very high market concentration and low entry prospects
- evidence of coordination
- the case raises novel issues
- "vulnerable" consumers would suffer a substantial proportion of the likely detriment.
Wichtigste Ergebnisse, laut Pressemitteilung. Kein funktionsfähiger Wettbewerb auf den Märkten der leitungsgebundenen Energieversorgung in der Bundesrepublik Deutschland. Die Monopolkommission empfiehlt daher die Senkung insbesondere der strukturellen Marktzutrittsschranken und stellt ein Maßnahmenpaket zusammen.
The Econlaw Study focuses on the music sector.
"..(W)e find that the incentives put in place by the PCR system should translate into an increase in the stock of music titles of around 1.5 percent in a period of 25 years. This increase would in turn compensate for the short-term negative effects on the joint welfare of consumers and producers of CE products, increasing total welfare by around 2.8 percent in a period of 25 years, although three fourths of the positive effects would already be in place after a period of 5 years. Regardless of the particular assumptions, the base-line conclusion is that the dynamic mid- and long- term effects of the PCR system on content supply compensate for the negative short-term effects calculated in our static analysis. In sum, the economic impact of the PCR system is not negative and could increase total welfare", p. 11.
According to the Study, exemption systems from payment in favour of certain types of users would be inefficient : more information and transaction costs, and this would in the end impact all participants (also the beneficiaries of the exemption), p. 13.
The announced White Paper on damage actions for breach of the EC competition rules (due for the early months of 2008) will deal specifically with collective redress mechanisms, such as representative actions by consumer associations.
How competitive is the information technology industry today? Very competitive, according to Microsoft
-Google and DoubleClick considered (at least, potential) horizontal competitors in two relevant markets: market for distributing online advertising space of third party (non-search) web sites and market for publisher ad serving tools
- therefore, "(I)f the evidence confirms that these markets are concentrated and that entry is otherwise difficult, as appears to be the case, then the merger presents a relatively straightforward case for challenge under the horizontal and non-horizontal merger guidelines"
- "The upshot of the merger may be higher costs for web publishers to sell their advertising space, which ultimately
may affect the diversity and richness of content available on the Internet and the vibrancy of the media".
Australian Competition Authority holding a different view, it seems
-distinction between linear and non-linear services deemed artificial
- audiovisual services on the internet too heavily regulated
- conflict with standard jurisprudence of the European Court of Human Rights
- regulation of non-linear services not necessary
Main findings, based on a survey of Canadian consumers' habits: P2P filesharing tends to increase rather than decrease music purchasing
Some statements worth considering:
(1) "..where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use"
(2) but fair use is not enough: independently thereof, uses that are "noncommercial, creative, and transformative in nature should not be pursued.
(3) automated content identification technologies (“filters”) to monitor their systems for potential copyright infringements should incorporate protections for fair use
(4) filtering technologies should establish three conditions before taking down or blocking content:
- the video track matches the video track of a copyrighted work submitted by a content owner;
- the audio track matches the audio track of that same copyrighted work; and
- nearly the entirety (e.g, 90% or more) of the challenged content is comprised
of a single copyrighted work (i.e., a “ratio test”).
(5) Moreover, "Human creators should be afforded the opportunity to dispute the conclusions of automated filters.
See previous wavesnews
"A key focus of the ACCC's investigation was whether the combination of Google's network of website publishers and DoubleClick's ad serving capabilities would enable the merged entity to increase the cost of ad serving to website publishers and advertisers.
"In reaching its decision, the ACCC noted that Google and DoubleClick are not close competitors in the provision of ad serving. In addition, the ACCC also took into account the presence of other competitors in this market that would be likely to constrain the merged entity post-merger".ACCC not to intervene in Google's acquisition of DoubleClick
- generic manufacturers compete by offering pharmacies rebates off invoice prices (to be considered, however, that two Canadian provinces prohibit rebates); rebates are substantial (on average 40 per cent of the price the pharmacy
- but this competition is not reflected in prices paid for the purchase of generics
- as the Competition Bureau concludes: "A regulatory and market framework where incentives to supply drug plans more closely reflect the underlying market dynamics could provide significant benefits to drug plans, and in turn to insurers, employers and Canadians".
Competition Bureau Generic Drug Sector Study.pdf (Objet application/pdf)
eHavioral Advertising: Tracking, Targeting, & Technology
The Court of Appeal for the Federal Circuit asserts that
"It is thus clear that the present statute does not allow patents to be issued on particular business systems—such as a particular type of arbitration—that depend entirely on the use of mental processes. In other words, the patent statute does not allow patents on particular systems that depend for their operation on human intelligence alone, a field of endeavor that both the framers and Congress intended to be beyond the reach of patentable subject matter. Thus, it is established that the application of human intelligence to the solution of practical problems is not in and of itself patentable". However "When an unpatentable mental process is combined with a machine, the combination may produce patentable subject matter, as the Supreme Court’s decision in Diehr and our own decisions in State Street Bank and AT&T have confirmed." But "The routine addition of modern electronics to an otherwise unpatentable invention typically creates a prima facie case of obviousness".
As far as competition law is concerned, the facts invest the tying doctrine. In this case, the tying product is the iPhone, whereas the tied product is AT&T's cell phone service.One of the central questions would be: Has Apple sufficient economic power in the tying market to coerce the purchase of the tied product?
J. Cobbe, E. Bietti, here .
Thurman Arnold Project at Yale, here .
TechCrunch, here .
Proskauer, here .