Competition Law and Copyright Misuse

Posted by D. Daniel Sokol

To stay on the theme of the Antitrust-IP interface, I found a new working paper by John Cross of the University of Louisville and Peter Yu of Michigan State University.  They explore copyright issues in their article entitled Competition Law and Copyright Misuse. 

ABSTRACT:  In the past decade, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection increases, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. Thus, courts, litigants, policy makers, and commentators have increasingly embraced competition law, copyright misuse, the unclean hands doctrine, and other tort law concepts to reduce abuse by copyright owners. This article discusses the different types of abuse and the various legal doctrines that Canadian and U.S. courts have used to resolve these abuse cases.

The first section discusses the limited monopolies of copyright owners and the various safeguards that have been built into the copyright system. Using four recent cases in the United States, this section highlights the growing abuse of copyright by its owners in recent years. The second section discusses the uneasy relationship between copyright and monopoly laws. It explores four categories of abuse cases and how monopoly law has been applied to deal with each of these types. The final section examines legal doctrines that lie outside competition law, but yet have been used to deal with copyright abuse. In particular, this section discusses copyright misuse, the doctrine of unclean hands, and claims of abuse of process and of tortuous interference.