Table of Contents

Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach

Christophe Geiger, Centre for International Intellectual Property Studies (CEIPI) - University of Strasbourg, Max Planck Institute for Innovation and Competition

The Hybrid Open Access Citation Advantage: How Many More Cites is a $3,000 Fee Buying You?

Frank Mueller-Langer, Max Planck Institute for Innovation and Competition, Munich Center for Innovation and Entrepreneurship Research (MCIER), International Max Planck Research School for Competition and Innovation (IMPRS-CI)
Richard Watt, University of Canterbury - Economics and Finance, The Society for Economic Research on Copyright Issues (SERCI)

The Competition Dimension of the European Regulation of Public Sector Information and the Concept of an Undertaking

Josef Drexl, Max Planck Institute for Innovation and Competition, Ludwig-Maximilians-Universität München

Evolution and Firm Survival in Vertically Related Populations: The Case of the German Piano Industry

Roland Stuerz, Max Planck Institute for Innovation and Competition

Trademarks Function, Don't They? CJEU Jurisprudence and Unfair Competition Principles

Annette Kur, Max Planck Institute for Innovation and Competition

Collective Management of Copyrights and the EU Principle of Free Movement of Services after the OSA Judgment – In Favour of a More Balanced Approach

Josef Drexl, Max Planck Institute for Innovation and Competition, Ludwig-Maximilians-Universität München


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach" Free Download
P. Torremans (ed.), "Research Handbook on the Cross-Border Enforcement of Intellectual Property", Cheltenham, UK / Northampton, MA, Edward Elgar, 2014, Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No. 14-01

CHRISTOPHE GEIGER, Centre for International Intellectual Property Studies (CEIPI) - University of Strasbourg, Max Planck Institute for Innovation and Competition
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In order to fight mass-scale copyright infringements on the Internet, numerous legislative initiatives have recently been proposed or adopted with the aim to improve the enforcement of copyright in the online world. This article evaluates the relevance of these enforcement strategies in the context of the unauthorised uses of copyrighted works by means of peer-to-peer file sharing or streaming. The dubious efficiency of some of the solutions adopted at national level, such as the implementation of graduate-response systems or the criminalisation of end users, is questioning the systematic increase of penalties as an appropriate reaction to address the problem of the general disrespect for copyright on the Internet. It rather calls for a new approach through the cautious legalisation of certain practices, in order to ensure that the copyright system continues to fulfil its basic function: the protection of creators and the encouragement of creativity.

"The Hybrid Open Access Citation Advantage: How Many More Cites is a $3,000 Fee Buying You?" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 14-02

FRANK MUELLER-LANGER, Max Planck Institute for Innovation and Competition, Munich Center for Innovation and Entrepreneurship Research (MCIER), International Max Planck Research School for Competition and Innovation (IMPRS-CI)
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RICHARD WATT, University of Canterbury - Economics and Finance, The Society for Economic Research on Copyright Issues (SERCI)
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We study the hybrid open access (HOA) citation effect. Under HOA pilot agreements, HOA is assigned for all articles of eligible authors. We use unique data on 208 (1,121) HOA (closed access) economics articles. We control for the quality of journals, articles and institutions and citations to RePec pre-prints. Performing Poisson quasi-maximum likelihood regressions, HOA turns out to be a significant predictor of citations with marginal effects ranging between 22% and 26%. However, once we additionally control for institution quality and citations to RePec pre-prints, the marginal HOA citation advantage turns out to be insignificant and drops to 0.4%.

"The Competition Dimension of the European Regulation of Public Sector Information and the Concept of an Undertaking" Free Download
Vicente Bagnoli and Josef Drexl (eds), State-Initiated Restraints of Competition (Edward Elgar 2014), Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No. 14-03

JOSEF DREXL, Max Planck Institute for Innovation and Competition, Ludwig-Maximilians-Universität München
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In 2013, the European legislature revised the Public Sector Information (PSI) Directive of 2003. The PSI Directive strives to make information collected by public sector bodies in the framework of their public tasks available for commercial re-use by private undertakings for the provision of added-value information services. Whereas, in 2003, the European legislature aimed to set first incentives to overcome resistance of public sector bodies to make data accessible for re-use, ten years later many Member States have developed open-data policies that are designed to make PSI available to the public free of charge. The revision of 2013 takes account of this evolution by integrating the former re-use policy into a larger open-data policy. This article assesses the evolution of the European framework for the regulation of PSI from a competition-oriented perspective. Thereby, it also critically reviews the Compass judgement of 2012 in which the Court of Justice of the EU (CJEU) limited the scope of EU competition law to the re-use of PSI by adopting a narrow approach to the concept of an ‘undertaking’.

"Evolution and Firm Survival in Vertically Related Populations: The Case of the German Piano Industry" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 14-04

ROLAND STUERZ, Max Planck Institute for Innovation and Competition
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Research on the evolution of industries has devoted little attention to the development of vertical structures of firms and the emergence of new, specialized supplier populations along the value chain of an industry as industries mature. The change of the vertical industry structure and the co-evolution of subpopulations of suppliers lead to the creation of an interdependent community of organizational populations. However, the impact of vertically related upstream suppliers on the survival of downstream end product manufacturers remains under-researched. This study addresses this research gap and explores the impact of upstream suppliers on downstream survival of all German piano manufacturers (1705-1929). Quantitative event history analyses show that the number of suppliers of the most important core components exhibits a positive effect on firm survival of piano manufacturers. However, the number of firms in other supplier subpopulations does not always affect the exit rates of quality and non-quality end product manufacturers in the same way, which is probably related to the different degree of vertical integration of these two types of firms. The study contributes to the understanding of the forces driving industry evolution and firm survival and makes it easier to predict long-term industrial developments.

"Trademarks Function, Don't They? CJEU Jurisprudence and Unfair Competition Principles" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 14-05

ANNETTE KUR, Max Planck Institute for Innovation and Competition
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Few issues have raised as much controversy in trade mark law and policy as the case law of the Court of Justice (CJEU) on trade mark functions. Enthusiastically greeted by some, others consider it disastrous in regards of reasoning and effect. The EU Commission has stepped in, first by filing a brief with the CJEU, then by way of proposed legislation that is supposed to push the genie back in the bottle: Protection under the double identity clause shall be available only for use of a sign that affects or is likely to affect the origin function. Unsurprisingly, that proposal met with antagonistic reactions from the opposite camps; and according to the reactions so far available from the legislative bodies, it is most unlikely to succeed.

This article tries to add nuance to the discussion by pinpointing the dilemma underlying the CJEU’s jurisprudence – the Court is no more to blame than the legislator who failed to articulate more clearly whether and how the protection granted in double identity cases should be limited. Furthermore it is argued that neither accepting the Commission’s proposal nor blindly continuing the current path will yield satisfactory results. More important than arguing about the contents of various trade mark functions and their place in determining the scope of protection is to observe the way in which trade mark law absorbs ways of reasoning typically found in unfair competition law. While that adds flexibility and may in the longer run lead to more substantive harmonization, the space for independent evaluation of unfair conduct under national law is narrowed accordingly. The effects of that process appear manageable where the scope of rights is concerned; however, the results are more hazardous on the level of enforcement, as was highlighted in the recent CJEU decision C-661/11 – Martin Y Paz.

"Collective Management of Copyrights and the EU Principle of Free Movement of Services after the OSA Judgment – In Favour of a More Balanced Approach" Free Download
Kai Purnhagen and Peter Rott (eds), Varieties of European Economic Law and Regulation (Springer 2014), Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No.14-06

JOSEF DREXL, Max Planck Institute for Innovation and Competition, Ludwig-Maximilians-Universität München
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On 20 February 2014, the Council of the European Union has adopted the new Directive on Collective Rights Management. In its Proposal for this Directive, the Commission argued that cross-border collective rights management services are liberalised pursuant to Article 16 of the Services Directive of 2006. Yet, only one week after the adoption of the new Directive, this view was rejected by the Court of Justice of the EU in the OSA judgment. This paper analyses the relationship between the principle of free movement of services and national sector-specific regulation of CMOs in more detail in order to explore to which extent the principle of free movement of services and the need for specific rules for collective management of copyrights could be better coordinated in the future.

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About this eJournal

The Max Planck Institute for Innovation and Competition Research Paper Series is a source for research papers authored by the Max Planck Institute for Innovation and Competition academic staff (Eds.: Prof. Josef Drexl, Exec. Dir., Prof. Dietmar Harhoff, Dir., Prof. Reto M. Hilty, Dir.). Papers cover topics on intellectual property law (copyright, patent, trademark law), competition law (law of unfair competition, antitrust law), innovation research and entrepreneurship. To access all the papers in this series please use the following URL: http://www.ssrn.com/link/Max-Planck-Intellectual-RES.html

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LAW RESEARCH CENTERS PAPERS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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