Keywords
Summary

Keywords

1 . FREEDOM TO PROVIDE SERVICES - RESTRICTIONS - ARTISTIC AND INTELLECTUAL PROPERTY - DISTINCTION BETWEEN THE EXISTENCE AND THE EXERCISE OF A RIGHT IN THE CONTEXT OF THE FREE MOVEMENT OF GOODS - APPLICATION OF THAT DISTINCTION IN THE CONTEXT OF THE MOVEMENT OF SERVICES

( EEC TREATY , ARTS . 36 AND 59 )

2 . COMPETITION - AGREEMENTS AND CONCERTED PRACTICES - COPYRIGHT IN A FILM - EXERCISE OF THE RIGHT - CONDITIONS OF PROHIBITION - CONTRACT GRANTING THE EXCLUSIVE RIGHT TO EXHIBIT A FILM - EXERCISE OF THE EXCLUSIVE EXHIBITION RIGHT - CONDITIONS OF PROHIBITION - CRITERIA OF APPRAISAL

( EEC TREATY , ART . 85 ( 1 ))

Summary

1 . THE DISTINCTION , IMPLICIT IN ARTICLE 36 OF THE TREATY , BETWEEN THE EXISTENCE OF A RIGHT CONFERRED BY THE LEGISLATION OF A MEMBER STATE IN REGARD TO THE PROTECTION OF ARTISTIC AND INTELLECTUAL PROPERTY , WHICH CANNOT BE AFFECTED BY THE PROVISIONS OF THE TREATY , AND THE EXERCISE OF SUCH RIGHT , WHICH MIGHT CONSTITUTE A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES , ALSO APPLIES WHERE THAT RIGHT IS EXERCISED IN THE CONTEXT OF THE MOVEMENT OF SERVICES .

2 . ALTHOUGH COPYRIGHT IN A FILM AND THE RIGHT DERIVING FROM IT , NAMELY THAT OF EXHIBITING THE FILM , ARE NOT AS SUCH SUBJECT TO THE PROHIBITIONS CONTAINED IN ARTICLE 85 , THE EXERCISE OF THOSE RIGHTS MAY , NONE THE LESS , COME WITHIN THE SAID PROHIBITIONS WHERE THERE ARE ECONOMIC OR LEGAL CIRCUMSTANCES THE EFFECT OF WHICH IS TO RESTRICT FILM DISTRIBUTION TO AN APPRECIABLE DEGREE OR TO DISTORT COMPETITION ON THE CINEMATOGRAPHIC MARKET , REGARD BEING HAD TO THE SPECIFIC CHARACTERISTICS OF THAT MARKET .

AS REGARDS , IN PARTICULAR , A CONTRACT WHEREBY THE OWNER OF THE COPYRIGHT IN A FILM GRANTS AN EXCLUSIVE RIGHT TO EXHIBIT THAT FILM FOR A SPECIFIC PERIOD IN THE TERRITORY OF A MEMBER STATE , IT IS FOR NATIONAL COURTS TO MAKE SUCH INQUIRIES AS ARE NECESSARY AND IN PARTICULAR TO ESTABLISH WHETHER OR NOT THE EXERCISE OF THE EXCLUSIVE EXHIBITION RIGHT CREATES BARRIERS WHICH ARE ARTIFICIAL AND UNJUSTIFIABLE IN TERMS OF THE NEEDS OF THE CINEMATOGRAPHIC INDUSTRY , OR THE POSSIBILITY OF CHARGING FEES WHICH EXCEED A FAIR RETURN ON INVESTMENT , OR AN EXCLUSIVITY THE DURATION OF WHICH IS DISPROPORTIONATE TO THOSE REQUIREMENTS , AND WHETHER OR NOT , FROM A GENERAL POINT OF VIEW , SUCH EXERCISE WITHIN A GIVEN GEOGRAPHIC AREA IS SUCH AS TO PREVENT , RESTRICT OR DISTORT COMPETITION WITHIN THE COMMON MARKET .