In his contribution to this volume (Chapter 10), Jon Crowcroft raises a number of concerns, widely shared among those who create software, regarding the legal protection afforded to computer programs. Most notably, there is broad apprehension that the protection afforded to computer programs (or software) under the law of copyright is deficient, for at least two key reasons. First, it fails adequately to protect the creative effort which is embodied in software from those who would seek to exploit it. Second, it signally fails to prevent the ‘piracy’ of software. These two concerns, although both relate to perceived free-riding on the creative effort of the software programmer, are not the same. In the first instance, it is argued by Crowcroft and others, that software is unlike other works protected by copyright and that the law does not protect those aspects of software which entail the most creative effort. As a result, such effort may be unjustly but nonetheless legally appropriated. Second, there is a general perception that for a number of reasons, it is far easier illegitimately to copy and distribute software than it is other sorts of copyright works. This chapter looks at each of these concerns and goes on to ask whether, as Crowcroft and others have advocated, software deserves new sui generis legal protection apart from that afforded to it under the law of copyright.

Catherine Seville's chapter performs at least three major services for the historian of copyright. The first is to treat the British and American sides in the bitter struggles over transatlantic reprinting symmetrically. One would have thought that this would be an elementary requirement for any self-respecting historian, but in fact sympathetic attention to the case for reprinting has been scarce, particularly for the very period on which Seville focuses: that between the first organized campaign for an international copyright measure and the eventual adoption of a protocol in the 1890s. The second is to demonstrate that this conflict did change its character over time. What it meant to argue against – or, more interestingly, for – transatlantic reprinting was significantly different in 1790 from what it would be in 1890. And Seville shows, third, that these changes took place at a semantic level. The language of piracy itself took on different connotations, becoming more overtly moral as the debate intensified. In each respect, her chapter tackles a major problem that dogs the historiography of intellectual property: its tendency to presume a normative tone, its legal essentialism, and its neglect of the fine grain of cultural history.

None of these three services should be regarded as taking precedence over the others. They are interdependent. Their underlying thread, it seems to me, is an insistence that the meanings of actions and statements can only be appreciated in terms of their embedding in situations of practice, which have their own chronologies.

Contrefaçon in French copyright law examines the scope of French copyright through the lens of remedies. Contrefaçon is the act to which certain civil and criminal sanctions attach. Viewed from this angle, the history of French copyright law tells a tale of the slow emergence of a unified concept of the wrongful act, covering not only the manufacturing of copies but also public performances, live and through transmissions. The emphasis on contrefaçon reveals the continuity of the revolutionary authors' right of 1793 with the ancient régime of printing regulation, with unauthorized production of physical copies of books remaining the essence of the reformulated wrongful act. By the same token, the early treatment of the playwright's exclusive right of public performance shows how far French law was from a general conceptualization of authors' rights. The regime of the performance right, introduced in 1791 as a coda to new regulation of theatres, long remained distinct from the reproduction right, particularly regarding its enforcement. Indeed, nineteenth-century legal commentators struggled to bring performance rights within the remedies for contrefaçon by recharacterizing a public performance as a kind of publication.

The 1957 French copyright law, which finally replaced the 1791 and 1793 laws and their ensuing amendments and judicial interpretations, also finally synthesized authors' rights, with contrefaçon providing the all-purpose remedial structure. The story does not end there, however, for the pressures of recent technological developments now threaten the coherence of contrefaçon.

Introduction

The distinction between unprotectable ideas and copyrighted expression is one of the most fundamental principles of copyright law. It is a ubiquitous principle of national copyright law, and may even be the international ceiling on the subject matter capable of protection under national law. But no principle has been so frequently repeated and yet so badly understood. Indeed, commentators and courts have not been slow to comment on how difficult it is to grasp the distinction between idea and expression – or, perhaps more accurately, how difficult it is to articulate the distinction, or to draw it in practice.

Some of the most intractable problems in applying the distinction (and hence of making overall determinations of infringement) have arisen in the context of applying copyright law to new technologies. Protection of software, in particular, has generated difficult decisions for courts seeking to sustain and apply the distinction. This is in part because computer programs ‘hover more closely to the elusive boundary line between idea and expression’ and hence repeatedly test the resilience of the distinction. Likewise, musical copyright cases, even more so of late, have presented courts with similarly hard questions (possibly because of a felt lack of judicial expertise, and perhaps also with an eye to the ‘functional’ aspects of certain parts of the musical work). In both types of cases, courts as a result appear more comfortable with an expansive role for expert testimony to aid judicial resolution of the dispute.

Introduction

There is now a voluminous international literature on copyright law, policy and theory. Yet despite its apparent diversity, much of this commentary (particularly the very large proportion that emanates from authors based in the United States) is underpinned by the same unquestioned assumption: that some version of economic efficiency – the achievement of which involves balancing the social costs of activities (such as creating cultural artefacts and controlling how these are used) against the benefits of those activities – is the crucial, if not the only, criterion for evaluating both the copyright system and the field that it regulates. Commentators may have different understandings of how costs and benefits should be measured, and of how private costs and benefits can be made to match up with social costs and benefits, but the idea that a cost–benefit equation is the acid test of defensible analysis and policy in this area is rarely challenged. Among the more overtly committed of law-and-economics (L&E) scholars, this general idea tends to be invoked in relation to a cluster of rather more technical categories of economic analysis, and some of these – notably the concepts of public good and externality – are particularly relevant to the project of explaining, and prescribing for, copyright law in economic terms. Very briefly, the premise of this project is that information ‘goods’ are often difficult and expensive to create; yet once produced, they tend towards the condition of public goods – they are non-rivalrous in consumption, and relatively non-excludable.

In this and the following two chapters of the book, the ‘options’ of internationalisation of competition law will be explored. The chapter will focus on the doctrine of extraterritoriality. It will provide a full and comprehensive account of the doctrine including an examination of the legal basis of the doctrine, the issue of sovereignty and the various case law developments that have occurred in different regimes, most notably the EU and USA.

When discussing competition law in an international context, the doctrine of extraterritoriality merits special treatment, not least because of the difficult issues it has triggered over the years and the difficult questions its application often gives rise to in real cases in practice. Reference has already been made more than once during the course of the discussion in this book as to the fact that enforcement by several competition authorities around the world has become ‘extraterritorial’ over the years. In light of this, it should not be difficult to see that an examination of such an activity is of crucial importance in the context of the present book.

The chapter is structured as follows. The first part considers the question of jurisdiction under public international law. The second part evaluates some fundamental issues underlying extraterritoriality. It advocates the view that the difficulties with extraterritoriality reside not only in the conflicts it has caused between countries, but also in the search for a compelling definition of it.

This chapter will examine the third of the three internationalisation options in the field of competition law: the multilateral option, namely the desire and efforts to develop a collective approach by countries in the field. The focus in the chapter will be on specific forms which this option can take and which may be conveniently grouped together under two headings: ‘binding’ obligations and ‘non-binding’ obligations. The main forms of the former – as they have come to emerge over the years – include: concluding a binding multilateral agreement; drafting an international competition law code; and building an international competition law regime with an independent institutional apparatus and capabilities and competence to handle competition cases. The latter heading, on the other hand, covers multilateral instruments introduced within a loose institutional framework, extending to mainly but not exhaustively guidelines, best practices and recommendations produced at a supranational level, i.e. by international organisations active in the field; the International Competition Network (ICN), the Organisation for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD) have all developed and produced such instruments over the years.

The chapter will in particular shed light on the usefulness of the multilateral option as a means to address competition problems in the global economy, and assess the realistic future prospects of pursuing this option through binding and non-binding obligations on countries and highlight the difficulties surrounding each of these two endeavours.

The focus of this chapter will be on bilateral cooperation between competition authorities: what can be termed the bilateral option. The mechanism of bilateral cooperation can be considered to be an old one in the field of competition law and a considerable amount of literature has been written on the topic. Among other things, the chapter will consider the different types of bilateral cooperation and their use in actual cases. The chapter will provide a critical analysis of the strategy including a look at its advantages and disadvantages and consider some examples of bilateral agreements that have come to be concluded over the years. The chapter will conclude with a look towards the future in order to consider possible directions for developing bilateral cooperation and offer a policy perspective in this respect.

Bilateral cooperation ‘through’ extraterritoriality

The previous chapter demonstrated, among other things, that the doctrine of extraterritoriality – regardless of its ‘rights’ or ‘wrongs’ as an option – is one means of international enforcement in the field of competition law. However it is a means that has serious limitations: even if one were to imagine a world built on extraterritoriality, the doctrine can be explosively problematic and is not necessarily capable of offering a solution to a perceived competition problem. Most notably, the doctrine suffers from serious limitation at the enforcement level.

This chapter offers a ‘global’ overview of competition law and policy as they have come to be developed at regional levels (beyond Europe) around the world. The chapter considers competition law initiatives within different regional communities as well as the inclusion of competition law as an element within regional free trade agreements. The aim here is not to offer an isolated treatment of every single effort at regional level but rather to consider the ‘idea’ of regional cooperation in an international context.

In recent years, considerable efforts have been made in relation to developing competition law and policy regionally. A review of these efforts will be given in the chapter with special attention being devoted to the following: Middle Eastern developments (with and without EU involvement); African developments: the Economic and Monetary Community of Central Africa (CEMAC), the Common Market for Eastern and Southern Africa (COMESA), the West African Economic and Monetary Union (UEMOA or WAEMU), the Southern African Customs Union (SACU), the East African Community (EAC) and the Southern African Development Community (SADC); in Asia: the creation of the Association of South East Asian Nations (ASEAN), the South Asian Association for Regional Cooperation (SAARC), and the Asia-Pacific Economic Cooperation (APEC); in the Americas and the Caribbean: the creation of the Southern Common Market (MERCUSOR), the Andean Community, Caribbean Community and Common Market (CARICOM), the North American Free Trade Agreement (NAFTA), the Central America-Dominican Republic-United States Free Trade Agreement (CAFTA-DR) and the various Latin American Free Trade Agreements.

Introduction

The US competition law regime is one of the oldest and most influential regimes in the world. Many people consider that the first legislation in the field of competition law enacted in ‘modern times’ was the US Sherman Act, the first federal competition law adopted in 1890. Naturally, therefore, the US competition law regime has a rich history and actors within the regime – whether US competition authorities, the judiciary, academics and practitioners – have phenomenal experience in the field of competition law. The contribution made by all of these actors over the past 100 or so years has been hugely important in advancing competition law to its current position of global significance. The admirably vast output by American scholars in particular must be acknowledged. Many global developments in the field have US roots: whether in relation to economic analysis and the use of economics in the field more generally or the design and use of important tools, such as the leniency programme in the area of anti-cartel regulation to mention but a few. Little wonder however that the American approach and thinking in the field of competition law and policy has been and continues to be extremely influential.

A brief historical perspective

In order to be able to understand the US competition law regime, in particular how it has developed over the years and what function it performs in the present time, it is crucial to become familiar with its roots, which as noted above extend to the nineteenth century.

Writing this book has been a very exciting and rewarding experience. The topic of international competition law and policy is one that I am very passionate about; my passion has grown over the years in parallel with the phenomenal increase in significance the topic has come to witness. International ‘elements’ are found nowadays in almost every single aspect of competition law and policy and this makes it necessary for everyone – whether competition officials, practitioners, judges, policymakers, business people, economists, students or others whose work has competition relevance – to develop an international-comparative perspective. This book therefore comes to make its own modest contribution to helping anyone interested in developing such perspective to do so in textbook style.

In setting out to complete the task at hand I have encountered many obstacles. First – and this is said with great pain – regretfully I sustained an extremely serious injury to my left (dominant) hand which left me simply unable to work on this book for some time. Although this was a major setback, my determination to complete the book received a major boost (and here I would like to thank Kim Hughes for the non-stop gentle reminders). A second obstacle was that – contrary to my prior (false!) hopes – life became phenomenally more (and not less) busy on the work front both within and outside ICC during the writing process: in particular, coordinating and teaching eight competition law courses attended by hundreds of students and serving as Director of the ICC have proved to be a full-time job indeed! Contrary to the hand injury however, this is an obstacle that added to the enjoyment of writing the book.

Attention given to the process

The internationalisation of competition law is a topic that has received considerable attention particularly in recent years. Most of this attention has emerged within the academic arena; though one must not overlook the important work of certain international organisations and competition authorities which have contributed significantly towards enhancing this attention. The origins of the ‘idea’ of internationalisation date back to the 1940s and 1950s when concentrated efforts were made at that time to create an International Trade Organisation (ITO) and later build a competition agenda within the United Nations. This no doubt makes the topic an old one. Over the intervening half a century or so however it has constantly remained a feature of current debate in the field and new ideas and proposals have continuously emerged seeking to identify what the ‘next’ step(s) should be in the field for the purposes of internationalising competition law. These ideas and proposals have not been confined to a particular area of competition law and policy nor indeed to a particular body, country or forum: initiatives seeking to internationalise competition law have covered different aspects of the field and have been either launched or supported by international organisations, scholars and key competition authorities as well as by many countries around the world. The majority of these initiatives have proposed furthering the internationalisation of competition law through existing international organisations such as the World Trade Organisation (WTO), the Organisation for Economic Cooperation and Development (OECD), the United Nations Conference on Trade and Development (UNCTAD) and the International Competition Network (ICN) which have already developed some agenda or programmes dealing with competition law and policy.