The intersection of competition and intellectual property (IP) has been a focal point for GCR for many years, going back to our coverage of a 1997 ruling in Canada, where the Competition Bureau sought to force Warner Music to license its sound recordings to the mail-order club BMG. But the Competition Tribunal held "as a matter of copyright law the respondents have the rights to refuse to license the Warner master recordings to BMG".
Fast forward more than 20 years and music rarely comes by mail-order. It has become much easier to stream, share – and steal – thanks to the internet. Our cover story looks at how legal protections against copyright liability for user uploads, combined with the market power of Google-owned YouTube, may have enabled the company to pay the owners of music recordings far less than other music-streaming websites and apps do.
Musicians may hope for help from antitrust enforcers, as the head of the US Department of Justice’s Antitrust Division has frequently spoken about the importance of protecting creativity and innovation. For this issue of GCR quarterly, five experts on IP and competition weighed in on Makan Delrahim’s views. They wrote largely about standard-setting, patent rights, and the role of competition authorities and judges in conflicts between those who own IP and those who wish to use it.
These topics have also been the subject of hard-hitting debate at GCR Live IP & Antitrust conferences since they began in 2013, and of two features in this magazine. One article considers the extraterritorial implications of a UK appellate court’s recent ruling that a patent implementer must accept a global licence or else face an injunction against its infringement. Another drills into the competition challenges faced by a single company, Qualcomm, particularly in Korea, China and Taiwan. A roundtable discussion takes a broader look at the handling of patent concerns in Asian jurisdictions.
We hope you enjoy these stories as well as the New York bar survey and an interview with Maureen Ohlhausen.
Since becoming the head of the US Department of Justice’s Antitrust Division in 2017, Makan Delrahim has made clear that he will blaze a trail in many areas, particularly intellectual property. Ben Remaly asked antitrust experts how Delrahim’s views could shape industries such as technology and healthcare; the impact his stance will have on the development of this area of antitrust law; and how the private sector is reacting to this new direction in enforcement.
As one of the world’s largest, New York’s antitrust bar boasts some of the best deal lawyers and litigators. Charles McConnell looks at the best of the BigApple.
Maureen Ohlhausen retired from the Federal Trade Commission in September 2018, having spent a total of 18 years at the agency in roles ranging from being an attorney in the general counsel’s office to leading the FTC as acting chairman. She sat down with GCR USA reporter Kaela Cote-Stemmermann in November to discuss her career in competition law and policy.
In October 2018, a UK appellate court upheld an order for Huawei to accept a global patent licence from Unwired Planet based on fair, reasonable and non-discriminatory (FRAND) rates that the court itself had determined – or face an injunction to prevent the device maker from infringing two of the portfolio company’s UK patents. Tom Madge-Wyld digests the extraterritorial implications of that decision.
GCR held its second annual California conference on intellectual property and antitrust last May at the University of California in Berkeley. Cornerstone Research economist Matthew Lynde moderated a panel focused particularly on how Asian courts and competition enforcers are handling licensing in IP-intensive industries, including requirements to license on fair, reasonable and non-discriminatory (FRAND) terms. The speakers were Yingling Wei, a partner at JunHe in Beijing; Patrick Breslin, founder of Breslin Consulting in Washington, DC; and Arshad (Paku) Khan, a partner at the Indian firm Khaitan & Co.
Qualcomm’s share of the myriad patented technologies that go into wireless devices – particularly mobile handsets – has put the company at the heart of the intersection between intellectual property and antitrust. Charles McConnell, Julie Jackson and Kaela Cote-Stemmermann focus on the US chipmaker’s legal woes in Asia.
Antitrust agencies see copyright protection as a key driver of a competitive, innovative economy. But musicians, record labels and other copyright holders say that Google degrades their intellectual property rights through a combination of market power, regulatory capture and political sway. Should antitrust enforcers step in? Ron Knox reports