An alliance of European composers and songwriters is alleging that major broadcasters and production companies are threatening them with blacklisting if the artists don’t give up all the rights to their work in exchange for commissions.

Taking aim at the practice known as “coercive commissioning,” the European Composer and Songwriter Alliance (ECSA) has filed a complaint asking the European Union’s Directorate General for Competition to investigate.  ECSA represents more than 12,000 composers and songwriters across Europe.

Broadcasters and affiliated production companies cited in the complaint include: TF1, ZDF Digital Medienproduktion GmbH, RTL Group, SAT 1, ARD, Rat Pack Filmproduktions GmbH, The Studio Hamburg Group, Grundy UFA TV Produktions GmbH, Rai Radiotelevisione Italiana S.p.A., Mediaset S.p.A., NTR, RTL Netherland, DDB Amsterdam, British Sky Broadcasting Group plc, Sky1, ITV Studios Limited, ITV plc and Zodiak Media Group.

According to ECSA, composers will not be considered for commissions unless they assign the copyright to the works created to a publishing company owned by the production company or broadcaster – or one chosen by them (and from whom the publishers will have generally received an advance payment).

The composers and songwriters also allege that this practice of “coercive commissioning” siphons off a significant source of income for music creators – usually freelancers without access to legal counsel and with vastly inferior bargaining power in negotiations with large broadcasting corporations.

The European Commission (the “EC”) has announced an investigation into whether The MathWorks, a U.S. software company, abused its dominant position by preventing competitor interoperability with its products.

The EC is investigating whether MathWorks – a leading developer of mathematical computing software for engineers and scientists – violated Article 102 of the Treaty on the Functioning of the European Union.  This investigation represents one of the most high-profile investigations by the EC concerning software interoperability since its landmark enforcement action in the Microsoft case. 

The EC investigation was sparked by a complaint that alleges that MathWorks refused to provide a competitor with software licenses and interoperability information necessary to “reverse engineer” interoperability with MathWorks’s products.  Such a refusal could have restrained competition in the market for the design and simulation of commercial control systems.  European Directive 2009/24/EC authorizes reverse-engineering for interoperability purposes. 

In its announcement, the EC cited its decision in the 2004 case against Microsoft, which required the software company to disclose application programming interfaces for the Windows operating system.  In 2007, the Court of First Instance (which is now known as the General Court) confirmed the EC’s decision.  The EC again investigated and fined Microsoft in 2008 for non-compliance with the 2004 decision.

The EC’s investigation of MathWorks signals that the competition authority intends to use its Microsoft decisions as precedent for further enforcement actions and that the EC does not view the Microsoft case as a unique set of circumstances confined to a single company.

MathWorks and Microsoft do share some market similarities.  In particular, just as Microsoft dominated the desktop operating system market, MathWorks is a leader in mathematical computing and simulation software with products like MATLAB and Simulink, which are widely used by engineers and scientists around the world in both industry and academia.    

This isn’t the first time that MathWorks has attracted the attention of competition authorities.  The U.S. Department of Justice filed a civil lawsuit in 2002 against MathWorks for alleged market allocation with a competitor for designing dynamic control systems.  MathWorks settled with the Justice Department that same year.

A federal judge in Ohio has ruled that the heightened pleading standard set by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly does not require plaintiffs to specify lost profits or to name the market participants injured by allegedly anticompetitive distribution agreements for the electronic security tags that merchants use to protect their merchandise.

Judge John Adams rejected Checkpoint Systems Inc.’s motion to dismiss the complaint filed by Universal Surveillance Systems in Universal Surveillance Corp., v. Checkpoint Systems, Inc., No. 11-cv-01755 (N.D. Ohio).  Universal Surveillance Systems alleges that Checkpoint has been suppressing competition in the electronic security tag market by using long-term, anticompetitive distribution agreements.  

At the heart of the dispute is technology known as electronic article surveillance (EAS) or, as the court aptly described it, “the small security labels that often trigger alarms when one attempts to leave a store.”

According to Universal Surveillance Systems, Checkpoint, which controls roughly 80 % of the market, originally offered to make a distribution deal with Universal Surveillance Systems that would have precluded Universal Surveillance Systems from selling goods from competitors to Checkpoint’s customers.  When Universal Surveillance Systems refused the deal, Checkpoint began making deals that prohibited its customers from doing business with Checkpoint’s competitors and bundled Checkpoint’s EAS tags with its EAS monitoring towers (the tall, plastic or metal towers you walk between when entering or exiting a store). 

Checkpoint also argued that the market class, which was identified as food and drug retailers, was insufficiently defined, and that the complaint needed to name injured market participants and specify the lost profits or sales that they had suffered.  The court rejected these arguments, noting that “such a precise pleading standard has never been adopted.”