Abuse in the exercise of copyright: Is Mexico ready to use compulsory licensing as a remedy? : The potential of copyright exclusivity to affect competition and the readiness of competition law tools in Mexico to bring balance

Abstract

This thesis deals with Compulsory Licences, both as a limitation provided by IP law and as a remedy provided by competition law. It focus on how such remedy have been provided by the European Commission as a solution to bring to an end the abusive use of copyright by copyright holders enjoying a dominant position. It further explores if such European development represents an option for developing countries and if Mexico is prepared to benefit from such development.The First Chapter presents four legal and social developments that suggests why compulsory licences, as a remedy provided by competition law traditionally agaisnt patent holders abuse of rights, are increasingly targeting today copyright holders, particularly those within the knowledge industries. The Second Chapter provides an outline of the main compulsory licenses schemes, both within and outside the IP universe. Such outline aims to offer the reader an overview of the rationale and efficacy of the remedy and the public objectives pursued by its provision. The Third Chapter explores the legal grounds and the rationale that supports the compulsory licences ordered by the European Commission in the Magill, IMS Health and Microsoft cases, where such application created an obligation to license a copyrighted work. It further assess if such a remedy represents an option for developing countries. The last chapter discusses Mexico’s readiness to benefit from such legal doctrine developed by the European Comission and the European Court of Justice. Options are submitted to appear in two directions. The first explores the possibilities and hurdles that Mexico might face if choosing to build a compulsory license regime under the TRIPS agreement. The second path explores the possibilities of using such licenses without a substantial copyright reform, merely by applying Mexican competition law rules. The Thesis concludes, inter alia, that the European doctrine is not a product suitable for export. However, it is submitted that it offers remarkable elements which urge policymakers of developing countries to rethink the relationship between copyright and competition. It further indicates that Mexican Competition Law framework posesses the structural capability for issuing effective compulsory licenses in cases concerning the abuse of copyright.