A WIN FOR IMS

The ECJ has ruled in favour of the arguments submitted by IMS. According to a press release issued by the ECJ today, "The refusal of an undertaking in a dominant position to grant a licence for a copyright only constitutes an abuse of a dominant position in certain circumstances. In order for such a refusal to be regarded as abusive it must prevent the emergence of a new product or service for which there is a potential demand, be without objective justification and be capable of eliminating all competition on the relevant market". The court has held that

"In order for the refusal by an undertaking which owns a copyright to give access to a product or service indispensable to carry on business to be regarded as an abuse, three conditions must be fulfilled:

* the undertaking which requested the licence must intend to offer new products or services not offered by the owner of the copyright and for which there is a potential consumer demand;
* the refusal cannot be justified by objective considerations, and
* the refusal is such as to reserve to the undertaking which owns the copyright the relevant market, by eliminating all competition on that market".

The IPKat doubts that these conditions will be met either in the IMS case or in the vast majority of cases in which abuse of the copyright monopoly is alleged.