Re: Consumer Association blasts iTunes pricing

> > 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.
> 
> (I'm sure you meant Art 30 (ex Art 36))

/me hits myself over head with statute book! Curse Amsterdam!
 
> I've already disclaimed that I don't know this area, I am going defer to
> what I presume is Dr Adams better knowledge here. 
> 
> Anyway what I am trying to understand is the distinction of principle
> between the case of a rail or plane ticket which costs a different amount
> according to the country of residence of the buyer, and an IP licence
> with
> the same characteristics. The transport case (a service rather than the
> transfer of a (pseudo) property interest) apparently exists in real life
> and is being dealt with.

Indeed that is troubling me too. According to the ECJ in Land Hessen v
G. Ricordi & Co. Buhnen- und Musikverlag GmbH. (C-360/00):

" First of all, it must be recalled that, by reason in particular of
their effects on intra-Community trade in goods and services, copyright
and related rights fall within the scope of application of the EC Treaty
(see, to that effect, Joined Cases C-92/92 and C-326/92 Phil Collins and
Others 1993 ECR I-5145, paragraph 27)."

This then means that they are subject to the quantitative import
restriction (Arts. 28-30 EC) - which whilst those provisions do not
apply to 'industrial and commercial (aka intellectual) property' they
are applied in cases where they are used simply to create abritrary and
discriminatory trading barriers.  Also, in this case they are are also
probably subject to the Art. 82 EC restriction on using a dominant
position within the common market. 

This got me thinking though - who has the dominant position? I wonder if
iTunes' response to the CA that 'our prices are based on local market
conditions' is a rather disguised way of saying 'the collecting
societies are making us do this'. In that sense it's the collecting
societies that hold the dominant position (after all the copyright is
their monopoly not iTunes'). 

Compare the UK and French "iTunes Terms of Sale pages":
http://www.apple.com/uk/support/itunes/legal/policies.html
http://www.apple.com/fr/support/itunes/legal/policies.html

The former references PRS / MCPS and the latter references SACEM and
SESAM under the "Content Usage Rules" section, which lends credence to
the idea that iTunes has individual licenses per member state rather
than a pan-european license from the record industry. In this case
iTunes S.à.r.l. seems to be colluding with the collection societies to
limit their markets. I cannot believe that iTunes simply hadn't thought
about this. Either they are taking a calculated risk or they beleive
they have (some possibly very obvious) legal justification that I'm not
seeing. Anyone any ideas?

> > 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?
> 
> For sufficiently electronic / digital batch codes, yes. The IPR
> Enforcement Directive will probably generalise this. Note that the EUCD
> Article 9 allows a competition-policy get-out clause which no-one has had
> cause to use yet.

Interesting, all these examples of conflicts of IP policy with other
areas of policy will make interesting footnotes in my Masters thesis :) 
cheers!

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