The IMS Health decision and the reconciliation of copyright and competition law

Abstract:

This comment on the European Court of Justice's decision of April 29, 2004 in the IMS Health case first gives an account of the procedural and factual background of the case. The state of the case law decided prior to the decision is summarised for a better understanding of the decision. The decision clarifies the circumstances under which a refusal to licence copyright will be abusive. It also states that the degree of participation of the pharmaceutical companies in the development of IMS's structure and the effort that those companies would have to make in order to purchase reports made on the basis of another structure are important elements in the determination of the indispensability of the structure. The decision can be positively criticised for the fact that the Court has finally clarified the case law on abuses of dominant position by copyright holders and that it conciliates copyright and competition laws.

It also resettles the balance between competition and copyright. However, the Court leaves the concept of new product undefined, entertaining legal uncertainty and allows the imposition of the licence immediately, which might undermine copyright holders' efforts and reduce their incentive to create in the first place.

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