Journal of Intellectual Property Law & Practice Advance Access originally published online on August 8, 2007
Journal of Intellectual Property Law & Practice 2007 2(9):609-612; doi:10.1093/jiplp/jpm132
| ||||||||||||||||||||||||||||||||||||||||||||||||||
© The Author (2007). Published by Oxford University Press. All rights reserved
Attheraces v British Horseracing Board: What price abuse of dominance?
Legal context: This article concerns the interplay between the competition rules (abuse of dominance) and intellectual property; the extent to which dominant companies are free to set the price for access to their IP; and excessive and discriminatory pricing.
Key points: The Court of Appeal of England and Wales held that the British Horseracing Board (BHB) had not breached the competition rules. It overturned the High Court's decision that the BHB had charged excessive prices for access to its database of information. The Court of Appeal found that in determining whether a price is excessive (and therefore a breach of competition law), it is not sufficient to look only at the level of the dominant company's return on its costs. This ‘cost +’ assessment is only one element of the analysis which must be carried out.
Practical significance: This case is apparently good news for IP owners, as it suggests that the legal test for showing excessive pricing is very high. However, the case also suggests that bringing a private action to enforce the competition rules will remain extremely difficult. This may have a chilling effect on the development of the law and in some cases may be to the public's detriment.
Key Words: Having initially seen its monopoly rights in what it believed to be a securely protected database of horse racing information greatly reduced in scope by the European Court of Justice, the British Horseracing Board has sought other means of protecting its financial investment in this asset. • The terms under which the Board has licensed access to, and use of, data generated or collated by it, while a legitimate means of exploiting intellectual property under IP law, have raised questions as to its legitimacy under competition law. • This article reviews a recent case in which the Court of Appeal for England and Wales, reversing the decision of the trial judge, has endorsed the primacy of competition law over IP and has given some guidelines as to how some key issues, including the assessment of a monopolist's unfair pricing policy, should be resolved.
* Associate, Bristows.