Antitrust & Digital versions of Art

On Wed, 25 Oct 1995, Howard Knopf wrote:
>
> Another point is that THERE SHOULD BE NO PUBLIC POLICY PROBLEM WITH VERY
> "THIN" COPYRIGHT (as Prof. Karjala calls it) FOR SUCH REPRODUCTIONS,
> PROVIDED THAT THERE ARE NO MONOPOLISTIC PRACTICES INVOLVED. It I were
> rich enough to buy Leonardo's Mono Lisa and put the painting away in my
> basement with armed guards, denying access to all art publishers of
> digital images, I should justly be accused of being eccentric, selfish
> and probably economically stupid. However, if I could somehow buy all
> of the paintings in the Louvre (or at least exclusive digital rights
> thereto), and especially if I do this with other museums and collections
> and I have a great deal of market power already in the digital
> arena/information highway sectors, perhaps THE ISSUE SHOULD SHIFT TO
> ANTITRUST LAW.
Howard raises a new point which I haven't seen much comment on lately.

Certainly, in Australia, much of copyright is exempt from antitrust law (see s51(3) Trade Practices Act 1974). However, certain aspects of antitrust law can apply to action taken pursuant to copyright rights. Thus, copyright owners/exclusive licensees do need to watch out for "misuse of market power" and "resale price maintenance".

One issue we need to consider, then, is when does someone have a sufficiently substantial degree of market power that they run the risk of contravening antitrust law?

Rather than looking at uncle Bill and his archival acquisitions, it might be wise to look at the emergence of collecting societies in this market.

In Australia, there is a new society called Vi$copy being established to collectively administer the rights of visual artists. If this society becomes the only practical channel through which to clear the rights to use digital images of visual art, does it run the risk of breaching antitrust law?

Of course, having substantial market power is only half the issue. The other half is whether or not that power has been "misused" in an anticompetitive way, ie for the purpose of eliminating or substantially damaging a competitor, preventing entry into a market, etc.

The relationship between copyright and antitrust is an interesting one. How does it work in the US or Canada or elsewhere for that matter?

     | jamie wodetzki
   \ / copyright research officer

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