UTICAJ AUTORSKOG PRAVA I PRAVA KONKURENCIJE NA ZAČETKE I USPON AMERIČKE FILMSKE INDUSTRIJE

In the period prior to the inclusion of motion pictures in copyright law in 1912, film producers had built their businesses on copying each other's films. Film pioneers were inventors, holders of patents right on equipment who did not perceive motion pictures as art, but as a scientific experiment. With the increasing growth of new media, protection of piracy became necessary. The Sherman Act of 1890 was the first Federal antitrust act. However, at the beginning it did not outlaw monopolistic business practices of film producers, which gave a major contribution to the formation and rise of Edison's trust and later, the Independent producers as well. During the First World War feature film became a standard in the film industry. Progresive increase of costs of production determined the decline of the European film industry, which could not catch up to US dominance.

Sherman Act 1890: Modernization and Impact on Markets

The major purpose of the Sherman Act was to prevent mergers from forming monopolies. It ensures consumers are protected from price discrimination, and there is free competition. Several economists, classical economists, neoclassical economists, Chicago school and Harvard school, pointed out several antitrust laws. Classical economists led by Smith argued that monopolists set prices at higher prices and raise their charges higher through understocking the markets hence corporations and mergers should be prevented. Neoclassical economists developed a model which assumes that there are no barriers to entry whereby there is free entry to the market. Harvard school also advocated for free competition. Either, the Chicago school was against the idea of free competition and proposed some acts from the antitrust laws to be removed. However, with advancements in technology, the Sherman Act has become outdated and some languages used are held, making it a challenge to interpret in courts. There is a need for the antitrust laws to be reformed to fit the changing technology. Bills should be proposed to make improvements to the acts. For example, Klobuchar Amy, in April 2021, proposed a bill seeking to reform antitrust laws to better perfect competition in the American economy.

Time for a New Antitrust Era: Refocusing Antitrust Law to Invigorate Competition in the 21st Century

U.S. antitrust laws have repeatedly responded to the changing needs of the nation’s economy. As the marketplace grows ever more data-driven, we find ourselves at yet another critical economic juncture that requires us to revisit antitrust practices to ensure healthy and sustainable competition. In this article, we propose two new antitrust approaches that fit into the existing regulatory landscape, detect signs of anticompetitive behavior early, and handle the unique nature of the digital marketplace. First, we advocate for an expanded definition of monopoly power under the Sherman Act that takes corporate data ownership into account. While current proxies for monopoly power, namely market share and price control, are symptoms of anticompetitive behavior, data ownership is increasingly its harbinger. Second, we advocate for an expanded premerger review process that seeks to prevent nascent competitors from being swallowed up by dominant players, a widespread practice that can be shown to reduce competitiveness. To this end, we leverage new insights from network science and empirical data to anticipate which types of mergers are most likely to have anticompetitive effects. Finally, we propose scalable regulatory strategies to discourage the anticompetitive behaviors we describe in their incipiency, without requiring case-by-case review.

A maldição da grandeza: uma resenha crítica da obra “The curse of bigness: antitrust in the new Gilded Age”, de Tim Wu

A ascensão de poucas grandes empresas que exploram atividades empresariais na Internet ao patamar de “impérios da comunicação” foi apontada, com pioneirismo, por Tim Wu, renomado Professor da Universidade de Columbia, que, em “The Curse of Bigness”, defende que os governos devem fazer cessar a autorregulação e intervir, por legislações antitruste, para cindir gigantes da tecnologia como Google, Facebook e Amazon, a fim de restaurar o dinamismo e promover a inovação. O objetivo primordial desta resenha é apresentar a mais recente obra de Tim Wu, sob viés crítico, a partir do contraste que permeia o direito econômico à luz da inexorável presença da tecnologia e da ponderação de valores concernentes ao intervencionismo regulatório estatal quanto à invocação de leis antitruste – especialmente, no caso da obra em análise, o Sherman Act norte-americano. Na análise crítica propugnada em sintonia com a metodologia empregada por Wu no curso de seu texto, apontar-se-á, por derradeiro, a necessidade de observância estrita da garantia de direitos fundamentais nos meandros do porvir.

Monopolization Standards in US Competition Law: Evolution and Evaluation

The aim of this article is to provide a short overview and analysis of the US antitrust law. Section 2 of the Sherman Act stipulates that it is unlawful to monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations. The article presents case law that reflects the evolution of monopolization standards and provides some interpretations of undertakings’ behavior that can be defined as monopolization. US practice shows that monopolization standards have changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which may lead to reduced innovation and other behaviors of undertakings that increase economic efficiency and improve competition, which is a type I error.

Attempt to Monopolisation and Digital Markets: Enforcement Gap

Rapid technological development, particularly in the Information and Communications Technology (ICT) sector, has led to a significant change in the industrial structure as well. Regulatory bodies world over are struggling to adjust to these changing scenarios. There is a widespread discussion regarding the need to regulate technology-driven markets such as e-commerce, telecommunication, etc. The practices used by some business giants are going against the neoclassical economic theory that profit maximisation is the goal of every firm. Firms are opting growth over profit. A large number of investigations were opened in India against business giants. Some of them were able to find contraventions of the Competition Act, 2002 (the Act). However, a large number of investigations were closed due to the lack of cognizance of collective dominance in law or inability to prove dominance in the traditional economic sense. It can be seen from the current jurisprudence of the Competition Commission of India (CCI) that there are constraints in handling competition issues in technology-driven industries mainly on account of the extant legal framework which does not recognise the need of assessing an appreciable adverse effect on competition where the dominance of the firm is not apparent. Although, the Act takes into account attempt to cartelisation as a contravention of the Act, it does not envisage an attempt to monopolise as a contravention of the Act. The past and current jurisprudence of the CCI indicates that CCI’s view is also undergoing radical change. This paper discusses the concept of “attempt to monopolise” as given in the Sherman Act and its applicability in the Indian context. The paper reviews the American antitrust literature existing on this subject and analyses the key factors which constitute antitrust violations under the clause “attempt to monopolise”. While the majority view emphasises on proving dangerous probability of success while determining an attempt to monopolise, as per the minority view, “attempt” connotes conduct and not a state of being. Unlawful intent can be inferred from the conduct as a proof of an “attempt”. The law does not require completion of a crime, it requires conduct. Thus, an attempt to monopolise is a conduct offence. This paper argues that borrowing the attempt to monopolise concept from the Sherman Act, 1890 will be helpful for the CCI in handling antitrust cases in technology-driven industries such as e-commerce, telecommunications, transport, etc. It will go a long way in achieving competitive markets, increased consumer choice and welfare in the long-run.

A Retrospective on U.S. v. Microsoft: Why Does It Resonate Today?

The U.S. v. Microsoft case was filed in 1998, the District Court filed its opinion in 2000, and the D.C. Circuit’s opinion came down in 2001. This article explains why the case continues to stand as an important Sherman Act, Section 2 monopolization case. Moreover, if restated and reviewed as a two-sided market case in light of Ohio v. Am. Express Co., the outline would be unchanged.