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By Cosmo Graham, Fiona Smith

As well as being the significant medium for communique, schooling and leisure, the recent financial system is now a number one supplier of products and companies via digital channels. the hot financial system rides at the crest of latest technological advancements in desktops, telecommunications and satellites growing new interactive mediums and from the deregulation and privatization of nation owned businesses within the telecommunications and broadcasting sectors. whereas the commercial viability of the dotcoms is puzzled, the life of a brand new economic system with novel equipment of construction, distribution and trade is right here to stick. proof of this can be the truth that there are three hundred million lively pcs on the earth, with 350 million those who use the area vast internet (expected to develop to 1 billion in 4 years), and the rate of microprocessors always raises, facilitating using IT. The query that's pursued within the sequence of essays during this ebook is whether or not the conceptual underpinnings of pageant legislation and overseas regulatory mechanisms are sufficient or acceptable to accommodate the advancements raised by means of the hot economic system.

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50 See eg Case 85/76 Hoffmann La Roche [1979] ECR 461; Case C–62/86 AKZO [1991] ECR I–3359. 51 US v Microsoft above n 47, 19–24. 52 Ibid, 20. Article 82 EC and New Economy Markets 33 will be written for the operating system, and the greater the number of applications, the greater the utility of consumers. It leads to dominance because an application written for one operating system is not compatible with other systems. The fact that Microsoft had created this network effect through superior marketing and excellent product design does not remove the fact that the network effect placed Microsoft in a dominant position.

In sum, the first criticism which may be levelled at the Commission’s Market Definition in this case is that it eschews the methodology propounded in the Notice on Market Definition (under which the emphasis should be upon whether consumers, on the basis of econometric evidence, find on-line music supply a separate market) in favour of a general, subjective evaluation based exclusively upon product characteristics. This approach is particularly unhelpful in the new economy because high technology products are all highly differentiated but may still be considered as substitutes.

While some writers take the view that the doctrine should apply to IP rights without any differentiations, some courts 89 ‘[A] product or service cannot be considered necessary or essential unless there is no real or potential substitute’ Joined Cases T–374/94, T–375/94, T–384/94 and T–388/94, ENS [1998] ECR II–3141 para 208. 90 Above n 74, para 66 (emphasis added). 91 Joined Cases C 241 and 242/91 P RTE and ITP v Commission [1995] ECR I–743. 92 I justify this reading by reference to para 41 of Bronner where the court considered whether ‘the case law on the exercise of an intellectual property right [is] applicable to the exercise of any property right’.

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