Competition Law and Copyright Misuse

UN COCKTAIL DE DROIT D'AUTEURS, Ysolde Gendreau, ed., Les Éditions Thémis, pp. 55-90, 2007

MSU Legal Studies Research Paper No. 04-29

University of Louisville School of Law Legal Studies Research Paper Series No. 2008-15

37 Pages Posted: 17 May 2007 Last revised: 8 May 2023

See all articles by John T. Cross

John T. Cross

University of Louisville - Louis D. Brandeis School of Law

Peter K. Yu

Texas A&M University School of Law

Abstract

In the past two decades, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection has increased, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. In response to these abuses, courts, litigants, policy makers, and commentators have increasingly embraced competition law, the doctrines of copyright misuse and unclean hands, and tort law concepts as counter-balancing tools. This article discusses four different types of abuse that has occurred in the copyright area and examines the various legal doctrines that have been employed by Canadian and U.S. courts to resolve cases involving such abuse.

The first section discusses the limited monopolies of copyright owners and the various safeguards that have been built into the copyright system. Using five recent cases - four in the United States and one in Canada - this Part highlights the growing abuse of copyright by its owners in recent years. The second section discusses the uneasy relationship between copyright law and the law of monopolies. It explores four categories of abuse cases and how the law has been applied in these cases. The final section examines legal doctrines that lie outside competition law, but have yet to be used to deal with copyright abuse. In particular, this Part discusses the doctrines of copyright misuse and unclean hands and the claims of abuse of process and tortious interference.

Suggested Citation

Cross, John T. and Yu, Peter K., Competition Law and Copyright Misuse. UN COCKTAIL DE DROIT D'AUTEURS, Ysolde Gendreau, ed., Les Éditions Thémis, pp. 55-90, 2007, MSU Legal Studies Research Paper No. 04-29, University of Louisville School of Law Legal Studies Research Paper Series No. 2008-15, Available at SSRN: https://ssrn.com/abstract=986891

John T. Cross

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States
+1.5028520850 (Phone)

Peter K. Yu (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

HOME PAGE: http://www.peteryu.com/

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