Volume 27 (2004)

Volume 27 (2004) / Issue 3

Estelle Derclaye, 'The IMS Health Decision: A Triple Victory' (2004) 27 World Competition, Issue 3, pp. 397–405

Abstract

<p>This article is a follow-up on a previous article we published in the December 2003 issue of this review. It comments on the recent decision of the European Court of Justice in the IMS Health case. The case dealt with the refusal by IMS Health to licence its copyright structure to NDC. The factual background of the case is restated and a brief summary of the state of the case law before the decision is also given for a better understanding of the decision. The decision of the Court is then summarised. The comment shows that the decision is a triple victory. First, the Court clarifies its case law and thereby provides legal certainty. Second, it is a victory for copyright. The so-called essential facilities doctrine does not apply to copyright as such and only when the competitor wishes to introduce a new product on the market will a licence be imposed. As a result, this is a victory for IMS Health because NDC will have difficulty proving it wishes to market a new product. However, the decision leaves one important point unresolved: the Court does not define what it means by a ``new product’’. This can have a broad or narrow meaning therefore influencing the fulfilment of the condition and the corresponding imposition of a compulsory licence.</p>

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ISSN: 1011-4548
ID: WOCO2004022