Opinion of the Advisory Committee on restrictive agreements and dominant positions given at its meeting of 17 June 2008 regarding a draft decision relating to Case COMP/C-2/38.698 — CISAC — Rapporteur: Spain
Date: 2008-12-18
Institutions: Advisory Committee on Restrictive Practices and Dominant Positions
Subjects: Internet, competition law, copyright, intellectual property, restriction on competition, satellite communications, telecommunications equipment

18.12.2008

EN

Official Journal of the European Union

C 323/9

Opinion of the Advisory Committee on restrictive agreements and dominant positions given at its
meeting of 17 June 2008 regarding a draft decision relating to Case COMP/C-2/38.698 — CISAC

Rapporteur: Spain

(2008/C 323/06)

1. The majority of the Advisory Committee agrees with the Commission that the relevant product markets

are:

(a) copyright administration services to authors;

(b) copyright administration services to other collecting societies;

(c) the licensing of public performance rights for satellite, cable and internet transmissions.

A minority abstains.

2. The majority of the Advisory Committee agrees with the Commission that in the product markets listed
from (a) to (c) the relevant geographic market is currently national in scope but could potentially be
broader and at least regional in scope in the absence of the restrictions introduced by the collecting
societies in the reciprocal agreements.

A minority abstains.

3. The majority of the Advisory Committee agrees with the Commission's conclusion that the membership
clause — which reflect the language of Article 11(II) of the CISAC model before the revision of
June 2004 — incorporated in the reciprocal agreements between collecting societies constitutes an
anti-competitive practice as defined under Article 81(1) of the EC Treaty and Article 53(1) EEA and does
not fulfil all the conditions of Article 81(3) of the EC Treaty and Article 53(3) EEA.

A minority abstains.

4. The majority of the Advisory Committee agrees with the Commission's conclusion that the exclusivity
clauses — which reflect the language of Article I of the CISAC model contract before the revision
of 1996 — incorporated in the reciprocal agreements between collecting societies constitute an
anti-competitive practice as defined under Article 81(1) of the EC Treaty and Article 53(1) EEA and does
not fulfil all the conditions of Article 81(3) of the EC Treaty and Article 53(3) EEA.

A minority abstains.

5. The majority of the Advisory Committee agrees with the Commission's conclusion that the practice of
collecting societies which consists in systematically limiting in the bilateral reciprocal agreements the
right to licence their repertoire to the domestic territory of the respective other collecting society:

(a) constitutes a concerted practice under Article 81(1) of the EC Treaty and Article 53(1) EEA;

(b) does not fulfill the conditions defined under Article 81(3) of the EC Treaty and Article 53(3) EEA.

A minority abstains.

6. The majority of the Advisory Committee agrees with the Commission that the collecting societies that
are still involved in the practices described under points 3 and 4 should immediately bring to an end the
infringements.

A minority abstains.

7. The majority of the Advisory Committee agrees with the Commission that the collecting societies should
bring an end to the practice described in point 5 within 90 days of the date of notification of the
decision.

A minority abstains.

8. The Advisory Committee asks the Commission to take into account all the other points raised during the

discussion.

9. The Advisory Committee recommend the publication of its opinion in the Official Journal of the European

Union.