EUROPE - GERMANY / COPYRIGHT - DATABASES / ANTI-TRUST

NCD / IMS: What is the real subject matter?

Copyright World, Issue 121, June-July 2002

Frank Fine

This article explains, from the point of view of National Data Corporation, the present state of the case pending before the Court of First Instance of the European Communities (IMS v Commission). The case involves the impact of anti-trust law on the protection afforded by copyright and database law to pharmaceutical information services and, more specifically, to the German market in regional sales reports. To comply with German privacy rules, pharmaceutical manufacturers collaborate on "brick structures" for the reporting of sales in such a way that at least three pharmacies are contained within a given geographic unit or "brick". When NDC entered the German market, IMS, as the controller of the brick structure filed a copyright infringement action. Injunctions against NDC and its recently acquired Pharma-Intranet made NDC's activities in Germany uneconomic. NDC responding by contesting IMS's copyright claim in the German courts and, more important, by filing a complaint with the Commission of the European Communities, alleging an abuse of a dominant position by IMS, which had refused to license the use of the brick structure. The Commission upheld the complaint, relying mainly on the Magill case and distinguishing the Ladbroke and Bronner cases. IMS appealed to the Court of First Instance and secured an order suspending the Commission's decision. However, as the author points out, the order is subject to a hearing (not yet scheduled at the time of writing) on the merits. Both IMS and the author agree in saying that the case has "significant implications for intellectual and database owners". (Note. Although this Digest has avoided any commitment to the views expressed in the article, it should be mentioned that IMS's case was presented in an article in the March issue of the same publication. It is likely that, when the substantive case is heard, judgment delivered and the true ratio decidendi made known, many more articles will appear.) [20071]