Sull’equità delle tariffe delle licenze collettive tra abusi di sfruttamento e di impedimento

With the sentence published here, the Court of justice addresses the question of the legitimacy under the antitrust law of a tariff structure and its price charged by a copyright collecting society. The Court was asked to determine whether a tariff structure practiced by a collecting society that focuses on the entire repertoire and not on the musical rights used by a professional user (in this case, a nightclub) could be considered lawful under the antitrust law; and if the price of the license thus commensurate can be considered compatible with art. 102 let. c) TFEU and do notset up an excessive price hypothesis. The antitrust hypothesis for excessive pricing is a particular case, not envisaged, for example, in the United States antitrust law and very controversial in the economic literature. In the famous United Brands case, the Court of Justice developed a test to make the operativity of the law in question more objective. However, in the judgment published here, this test was deemed inapplicable to determine whether the price of a collective license could constitute an excessive price hypothesis. In this study, the author, after investigating the reasons for this decision, attempts to demonstrate: (i) that the applicability of the so-called “United Brands Test” depends on the nature of the collecting societies; (ii) that in the new European regulatory framework introduced with the EU directive 26/2014, collecting societies are to be considered as mere intermediaries in the circulation of copyright; (iii) that in the light of Directive 26/2014 and new technologies, tariff structures of collecting societies will have to be increasingly analytical and focus on rights effectively used by the user; (iv) that the so-called “United Brands test” could still play a valuable role in determining the antitrust lawfulness of the licensing price of collecting societies.