Re: Consumer Association blasts iTunes pricing

On Fri, 17 Sep 2004 23:03:35 +0100 (BST), "Martin Keegan"
<mk270-KWPb1pKIrIJaa/[email protected]> said:
> On Wed, 15 Sep 2004, Chris James wrote:
> 
> > I think there may be more to this than a simple discriminatory pricing  
> > issue, in terms of the process by which the copyrights for music on iTunes  
> > is secured. I've posted some thoughts on my blog:  
> > http://www.chrisjames.me.uk/blog/_archives/2004/9/15/141717.html
> > 
> > I'd be really interested in what others think or if I have missed anything  
> > obvious.
> 
> Hello again Chris!
> 
> This isn't my area; I understand vaguely that once some IP right has been
> licensed a matter tends to be governed by competition law to the
> exclusion
> of laws regarding the free movement of goods. Is this *always* the case,
> or can what iTunes is doing be challenged under Article 28 of the Treaty,
> as a quantitative restriction on exports?

Hello Martin and all,

Yes I missed that, thanks. The root of it is in Article 295 EC (ex. 222)
which excludes matters of regulating property from EU competence
(although typically the ECJ has sought to interpret it in a limited
sense). You are right about Art. 28, its Art 36. which allows
quantitative restrictions in the freedom of movement of licensed IP.

Most of the discussion seems to be with relation to trademark and
intra-state parallel importing. There are some doubts over its copyright
- the best discussion I found was on the Europa site here:
http://snipurl.com/copyright_freetrade. It points to the Phil Collins
case of 1992 which argued that the non-discrimination principle still
applied to copyright notwithstanding the quantitive export and property
rights provisions.

On a related note I found an excellent article on Lexis in the course of
starting to research this: Hays, Thomas "The Copyright Directive, Rights
Management and the End of Parallel Trade" (2002) IP & IT Law 7.2(2) -
It's argument is that the protection afforded to Intellectual Property,
and in particular Art 7 of the EUCD on DRM can be applied to trading
practices by adding DRM to batch codes, the effect of which could be to
hinder the ability of third parties to engage in parallel importing:

"Thus, because code number on copyright protected products are protected
as being representative of 'electronic rights-management information'
stored elsewhere, the removal of those numbers without the copyright
owner's permissions would violate the protective provisions [of the
Directive]. In this way the Directive would prohibit the removal of
batch codes, either as a result of parallel traders removing the codes
to hide their sources... or during repackaging or relabelling. Because
the codes must remain on products, IP owners would be able to identify
the source from within their distribution systems responsible for the
unauthorised sales that gave rise to the parallel importing?"

Does the EUCD really extend as far as printed batch codes on products?
If so does anyone know if this has been considered further in the
process of the Commission's DRM workshops and DRM consultation?

Sorry for the long post - this has caught my interest, am jotting it
down before I forget it :)

Chris.

-- 
  Chris James
  http://www.chrisjames.me.uk