30.

The following theories of coordination that suggest that major record companies might restrict the access of independent record companies to retailers on non-price aspects of the market for recorded music have been analysed and rejected. Moreover, it is not obvious that these topics would restrict competition between majors themselves. — Access to shelf-space: The market investigation confirmed that hits released by independent record companies benefit from similar conditions as hits from major companies. Shelf space is allocated independently by retailers, on the basis of their own evaluation of albums sales potential. — Access to airplay: Most successful radios in Europe broadcast music on the basis of a playlist. All record companies compete to be registered on such playlists as regular airplay is one of the factors supporting sales. Most competitors reported that TV or radio stations, in their decisions on the allocation of air-time to music titles did not particularly favour recording companies belonging to their group. Finally, the percentage of combined airplay for independent record companies increased in 10 out of the 15 EEA countries analysed during the 2003-2005 period. — Charts rules: Whereas the existence of charts can indeed increase transparency by providing regular information to all market observers on how CDs albums of competitors perform, the Commission investigation did not find any instances of majors using chart rules as an opportunity to deny the access of artists from independent record companies to the charts. In addition, the Commission notes that minimum prices do exist in 12 countries for CD albums to enter the charts, but consider that these prices are too low to hinder competition between record companies on setting different prices and/or constituting focal points for a coordinated approach by majors. — Release dates: Sony BMG has recognised that decisions on its albums' release dates are influenced by release dates of competitors' albums. Release dates are also often publicised and therefore transparent or relate to specific events (e.g. Christmas sales). However, release dates are often postponed and in any event, the behaviour of majors in this regard can hardly be qualified as collusion and seems more based on competition, with each firm trying to optimise its release dates. — Publishing and recording rights: All majors have a sister company active in music publishing, apart from Sony BMG, since Bertelsmann sold in 2007 its publishing division to Universal. Sony/ATV, a publishing joint venture between Sony and Michael Jackson, reaches a significantly lower market share than its competitors. Moreover, the Commission investigation concluded that because of the existence of collecting societies, publishing companies are not in a position to exercise market power in the market for recorded music. — Cultural diversity: The market investigation showed that all record companies are engaged in intense competition for discovering and signing new artists. Major record companies have reduced the number of artists on their roster, but this decrease followed the drastic decline in demand and started before the merger of Sony and BMG. The share of local artists in record sales has significantly increased in the majority of Contracting Parties to the EEA Agreement in the past few years. The increased share of local artists is retailed through both traditional retail channels and the internet, with the latter acting as a forum for known and unknown artists increasingly to display and sell their music directly to end-customers without the use of traditional retail channels. It can thus be concluded that the merger of Sony and BMG had no negative impact on cultural diversity at the level of creation, recording, distribution and retail.