## Facts

- RTE, ITV (through ITP), and the BBC held copyright in their weekly television programme listings and each published separate guides.
- No comprehensive weekly television guide existed for the channels receivable in Ireland and Northern Ireland.
- Magill, an independent publisher, sought to publish a single weekly guide covering all three broadcasters and needed advance scheduling data (channel, day, time, and programme title).
- The broadcasters refused to license the listings, relied on national copyright law, and obtained national-court injunctions preventing Magill from publishing a comprehensive guide.
- Magill complained to the Commission alleging abuse of a dominant position under Article 86 EEC (now Article 102 TFEU).
- The Commission found an infringement and ordered the broadcasters to supply advance weekly listings to third parties on request, on a non-discriminatory basis, and to permit reproduction.
- The Court of First Instance upheld the Commission; RTE and ITP appealed on points of law to the Court of Justice.

## Issues

1. Whether RTE and ITP held a dominant position in the relevant market for weekly television magazines in Ireland and part of Northern Ireland.
2. Whether a copyright-based refusal to license programme listings could constitute an abuse of dominance under Article 86 EEC, and what “exceptional circumstances” permit such a finding.
3. Whether the Commission could order supply and permission to reproduce under Regulation No 17, and whether that remedy was disproportionate or unlawfully impaired intellectual property rights.
4. Whether national copyright law or international copyright obligations could justify conduct otherwise infringing Article 86 EEC.

## Decision

- The Court of Justice dismissed the appeals and affirmed the Commission decision and the lower court’s judgment.
- The court held the broadcasters occupied a dominant position because they had a de facto monopoly over indispensable scheduling information and could prevent effective competition in weekly television magazines in the relevant area.
- The court held the refusal to supply and permit reproduction was abusive in the case’s “exceptional circumstances,” including:
  - it prevented the emergence of a new product (a comprehensive weekly guide) for which there was potential consumer demand,
  - it lacked objective justification, and
  - it reserved the downstream weekly-guides market to the broadcasters by excluding competition.
- The court held the Commission could impose positive obligations necessary to end the infringement, including non-discriminatory supply and permission to reproduce, and that the remedy was proportionate.
- The court held neither national copyright rules nor international agreements insulated the conduct from Article 86 EEC.

## Legal Principles

- Ownership of an intellectual property right does not, by itself, establish dominance; dominance may arise where the right-holder controls an indispensable input and can block effective competition.
- The exercise of copyright by a dominant firm is subject to competition-law review; in “exceptional circumstances,” refusal to license may constitute abuse.
- “Exceptional circumstances” supporting liability include refusal that prevents the appearance of a new product for which there is consumer demand, lacks objective justification, and excludes competition in a distinct downstream market.
- The Commission may order measures, including affirmative supply obligations, that are necessary and proportionate to bring an abuse of dominance to an end.
- National law and international copyright obligations cannot justify continuing conduct that infringes EU competition rules where the Treaty applies and inter-state trade may be affected.

## Conclusion

The court upheld a compulsory-licensing-type remedy where dominant broadcasters used copyright to withhold indispensable programme listings, thereby blocking a new comprehensive guide and excluding competition without objective justification, in breach of Article 86 EEC.


Radio Telefís Éireann (RTE) v. Comm’n of the Eur. Cmties., Joined Cases C-241/91 P & C-242/91 P, 1995 E.C.R. I-743 (C.J.E.U. 1995)