知识产权滥用的反垄断法规制困境以及应对之策——以数字音乐独家授权为切入点

Intellectual Property Abuse Anti-Monopoly Regulatory Problems and Response—Digital Music Exclusive Licensing as an Entry Point

腾讯被国家监督管理总局处罚之后发表声明称放弃其所签订的独家版权,数字音乐市场迎来了“后独家时代”。独家版权造成的版权滥用并不只存在于数字音乐市场,在线网络平台同样也存在着平台通过抢夺视频版权来抢占市场,并且借助网络效应来提高市场进入壁垒。以知识产权法还是反垄断法来进行规制版权滥用行为一直存在争议,著作权法难以完全厘清知识产权滥用带来的失衡竞争关系,反垄断法在适用上存在着难度。结合我国目前的市场情况,保持反垄断法的谦抑性并加强事前监管;在诉讼中对知识产权滥用抗辩保持审慎态度,防止这一抗辩本身被滥用。还可以加入对知识产权创新和竞争者进入市场难度等特殊考量因素来提升司法实践中的规则适用性。

Tencent issued a statement stating that after being punished by the General Administration of National Market Supervision to give up its exclusive copyright, the digital music market has entered the “post-exclusive era”. Copyright abuse caused by exclusive rights does not only exist in the digital music market, the online video market also exists platforms to seize the market by robbing video copyright, and using the network effects to increase the market entrance barriers. Intellectual property law or anti-monopoly law to regulate copyright abuse has been disputed, copyright law is difficult to fully clear the imbalance of competition related to intellectual ownership abuse, and the same for the antitrust law in the application. In conjunction with the current market situation in China, the anti-monopoly law should be modestly and strengthen pre-regulation;in lawsuits, the abuse of intellectual property rights should be treated cautiously to prevent abuse itself. It is also possible to include special considerations such as innovation in intellective property and the difficulty of competitors to enter the market to improve the applicability of rules in judicial practice.