[Fsfe-uk] GPL and new EU antitrust proposals for licences

[James Heald]

(1) I'm not sure whether I'm posting this to the right place, and (2) 
there's probably nothing to worry about anyway;

-- But: has anybody checked the GPL against the proposed new EC 
antitrust regulation on technology transfer and licencing ?

http://europa.eu.int/comm/competition/antitrust/legislation/draft_technology/regulation_en.pdf

The draft regulations were published in October (I think) and the 
official consultation period has just closed (26th November).
http://europa.eu.int/comm/competition/antitrust/legislation/entente3_en.html#technology

For the first time, the new regime is explicitly intended to apply to 
copyright licencing as well as patent licensing.


At issue is Article 81(1) of the EC treaty, and regulated exemptions to it.
http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html

> The following shall be prohibited as incompatible with the common market: all 
> agreements between undertakings, decisions by associations of undertakings and 
> concerted practices which may affect trade between Member States and which have 
> as their object or effect the prevention, restriction or distortion of 
> competition within the common market, and in particular those which:
>
> (a) directly or indirectly fix purchase or selling prices or any other trading 
> conditions;
>
> (b) limit or control production, markets, technical development, or investment;
>
> (c) share markets or sources of supply;
>
> (d) apply dissimilar conditions to equivalent transactions with other trading 
> parties, thereby placing them at a competitive disadvantage;
>
> (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 

and 81(3):
> The provisions of paragraph 1 may, however, be declared inapplicable in the 
> case of:
>
> - any agreement or category of agreements between undertakings;
>
> - any decision or category of decisions by associations of undertakings;
>
> - any concerted practice or category of concerted practices,
>
> which contributes to improving the production or distribution of goods or to 
> promoting technical or economic progress, while allowing consumers a fair share 
> of the resulting benefit, and which does not:
>
> (a) impose on the undertakings concerned restrictions which are not 
> indispensable to the attainment of these objectives;
>
> (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. 


Could it conceivably be argued that prima facie the terms of the GPL 
might somehow be a restriction of freedom under 81(1)(a), 81(1)(b) or 
81(1)(e)  ?


The proposed new regulations set out conditions for technology transfer 
licences to fall under a block exemption to 81(1), issued persuant to 81(3).

(It is also possible, I think, to have seek a special exemption from the 
Commission's DG competition for a particular agreement)


The clause in the proposed exemption which particularly caught my eye is
Article 5(1) condition (b):

The exemption provided for in Article 2 shall not apply to any of the 
following obligations [[ie the following could be *invalid* on antitrust 
grounds]]:

(b) any direct or indirect obligation on the licensee to assign, in 
whole or part, or to a third party designated by the licensor, rights to 
improvements to or new applications of the licensed technology.

Could this affect the GPL ??


The antitrust exemption also can only be invoked by competing parties if 
their combined market share is below 20%, or non-competing parties if 
their individual share in each market does not exceed 30% (Article 3 of 
the proposed new regulations); but as those shares are if possible to be 
measured by market value, rather than market volume (Article 8), this 
shouldn't be an issue.


It may be that I'm fretting about nothing... but I'd more more 
comfortable if I knew that somebody who knew about these things had 
looked over the proposals while they are still proposals, before they 
harden into law.

All best,

   James.