Edited By Inge Govaere and Hanns Ullrich
PART III. INFORMATION DOMINANCE: THE LIMITS OF THE COMPETITION RULES AND THE PUBLIC INTEREST
PART III INFORMATION DOMINANCE: THE LIMITS OF THE COMPETITION RULES AND THE PUBLIC INTEREST 241 CHAPTER 10 Can Intellectual Property Rights Be Construed by the Courts to Limit their Use for Anti-Competitive Purposes? Eileen SHEEHAN* Référendaire, Court of Justice of the European Communities Introduction The purpose of this chapter is to examine, with reference to recent case law of the European Court of Justice (hereinafter ECJ) concerning the sui generis protection of databases, the role of courts, when constru- ing intellectual property legislation, in limiting the possibility for intel- lectual property to be used as an instrument for anti-competitive pur- poses. The case law of the Federal and Sixth Circuits of the United States Court of Appeals on Section 1201 of the 1998 Digital Millenium Copyright Act (hereinafter DMCA) concerning the circumvention of copyright protection systems and aftermarkets is also briefly examined. In four cases,1 which were referred to the ECJ on foot of the Arti- cle 234 EC preliminary reference procedure, that court provided some guidance as to the interpretation of a number of key provisions relating to the sui generis database right which was established by Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases2 (hereinafter the Directive). * The views expressed in this paper are solely those of the author. 1 ECJ of 9 November 2004, Case C-203/02, The British Horseracing Board Ltd and Others v. William Hill Organization Ltd, 2004, ECR I-10415 (the...
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