Radio Telefis Eireann v Commission (Magill)
A refusal to license copyright in television listings can be an abuse in exceptional circumstances, where it prevents the emergence of a new product for which there is consumer demand.
Facts
The Irish and British television broadcasters each published their own weekly television guides listing their programmes, and relied on copyright in their programme listings to prevent anyone else from publishing a comprehensive weekly guide listing the programmes of all channels. Magill, an Irish publisher, wished to publish such a guide, but was refused licences. The European Commission found that the refusals were an abuse of a dominant position.
Legal principle
The Court of Justice upheld the Commission's decision. The court said that the exercise of an exclusive right by the proprietor may, in exceptional circumstances, involve abusive conduct. The exceptional circumstances here were that the broadcasters were the only sources of the basic information about programme scheduling, which was indispensable for compiling a weekly guide, that the refusal prevented the appearance of a new product, a comprehensive weekly guide, which the broadcasters did not offer and for which there was potential consumer demand, that there was no justification for the refusal, and that the broadcasters reserved to themselves the secondary market of weekly television guides.
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