Upphovsrätt i konkurrens : särskilt om tvångslicensiering

Sammanfattning: Although copyright law, on the one hand, establishes far-reaching exclusive rights and institutes legal monopolies while antitrust law, on the other hand, curtails the undue exercise of market power, there is no fundamental incongruity between the two regimes. The general harmony does not, however, preclude the occasional existence of glaring dissonances. Tension does exist on the fringe. The thesis addresses the intersection of copyright and antitrust. More specifically it attempts to ascertain and clarify the circumstances under which a unilateral and unconditional refusal to license violates Article 82 of the EC Treaty, i.e. the provision on abuse of a dominant position, and its Swedish counterpart, Sect. 19 of the National Competition Act, and, consequently, when antitrust based compulsory licensing can be invoked. A general examination of the structure and purpose of copyright, the object of protection and its delimitations in favour of a competitive environment is carried out. The copyright regime’s own system of specific limitations and exceptions is also surveyed, as well as the possible introduction of a “fair use” provision in favour of competition.The methodology used in antitrust to estimate market power in relation to copyright is examined, as well as the prospects of successfully challenging an unconditional, unilateral refusal to license under the abuse of dominance provision. Particular emphasis is placed on the so-called “exceptional circumstances” test. The thesis also addresses the “false dichotomy” between an internal solution (within copyright law) and an external solution (antitrust intervention) to the competition problems caused by copyright. Since the problems vary in character and magnitude an “either… or” approach seems flawed. Instead, the use of both models, simultaneously applied, can be advocated.