ADVOCATE GENERAL ADVISES IN IMS CASE -- BUT NO ENGLISH TEXT YET

Advocate General Antonio Tizzano has now delivered his Opinion in Case C-418/01, IMS Health GmbH & Co. v NDC Health Gbmh & Co., a reference to the European Court of Justice (ECJ) from the Frankfurt District Court. This case is a battle between IMS, which claims copyright in a 1,860 square grid into which all German pharmaceutical retailers are divided for the purposes of collating and analysing marketing data, and NDC, which claims that IMS’ refusal to grant it a licence to use that grid is an abuse of IMS’ dominant position in the market and therefore contrary to Article 82 of the EC Treaty. This argument is based on “essential facilities doctrine” -- that NDC cannot compete with IMS in the supply of pharma information because the tool which enables it to do so (the 1860 square grid) is withheld from it. AG Tizzano has apparently restated existing EC law and has advised that the ECJ has in the past only held there to be an abuse of a dominant position where the copyright owner, by refusing to license a third party, has prevented that party from trading in a secondary market rather than specifically in the market in which the copyright owner is itself trading.

The IPKat cannot be more specific in his comments on what the Advocate General said, given the regrettable absence of an English text of this Opinion.

Text of Advocate General’s Opinion in Spanish, German, French, Italian, Portuguese, Finnish and Swedish
Find out here, here and here what the ECJ said about abuse of a dominant position by a copyright owner in the Magill case.
Essential facilities doctrine here, here and (in the US) here
Do you wish to adopt a dominant position? Click here , here or here to find out how