Friday, 7 November 2014

Sale versus licence offline and online: can competition law bridge the doctrinal gap?

"Sale versus licence offline and online: can competition law bridge the doctrinal gap?" is the title of an article in the most recent issue of Oxford University Press's International Journal of Law and Information Technology (Winter 2014) 22 (4): 311-333. The authors are Auckland University of Technology Professors Louise Longdin and Ian Eagles, togetgher with Senior Lecturer in Law Pheh Hoon Lim. According to the abstract:
Disputes involving copyright owners seeking to privately regulate secondary markets for used software and e-music have come before the courts of both the European Union and the USA with wildly dissonant outcomes partly due to very different legislative frameworks but also to very different judicial attitudes to economic factors and developments in digital technology. 
This article considers the extent to which contract can successfully be used to bypass traditional restrictions on the reach of copyright owners’ exclusive right of distribution and also explores the role competition law could play in balancing the escalating tension between private and public interests in an increasingly digital global economy.
This blogger likes the notion of an exploration of the manner in which both consensual and regulatory approaches can be brought to play in seeking to achieve a balance between private and public interests, though he prefers to think of the tension -- whether or not it is escalating -- as itself having a creative function. It's not so much a matter of it being the grit in the oyster of software copyright that produces the pearl; rather, it is an indication of the degree to which the private and public interests can tolerate a non-preferred solution before the private sector simply stops investing in new products or the public interest simply helps itself to that for which it cannot. or will not, pay.

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