Research On The Responsibility To The Abuse Of Dominant Position By Software Copyright Owners

In August 1st 2010,"Anti-monopoly Law of the PRC"has been implemented in our country, of which Article 55 provides"This law shall not apply to the conduct of business operators to exercise their intellectual property rights in accordance with the laws and relevant administrative regulations on intellectual property rights; however, this Law shall apply to the conduct of business operators to eliminate or restrict market competition by abusing their intellectual property rights."After it has been implemented, although there is a high voice on punishing the monopoly conduct of foreign software giants such as Microsoft Corporation, there yet has not any case before Government Authorities or Courts in regarding to abuse of dominant position by software copyright owners.In this essay, how to identify a relevant market of software copyright is fully analyzed as well as the methods and ideas to identify the relevant technology market and the relevant innovation market of software copyright. When identifying a relevant market of software copyright, the element of software technology competition and the element of software territory, in which the element of software technology competition is related to software functions, application of industry field and users'habits and the element of software territory is related to the territory of user groups, software functions, software prices and entry of the software market. The following elements shall be considered when identifying the relevant innovation market of software copyright: 1. whether there is any competition or substitutive relationship; 2. the relationship with those technologies of downstream or adjacent of products; 3. the Predictability of the sub-mentioned competition or substitutive relationship; 4. whether the subjects of development enjoy the independent intellectual property rights. Only after identifying the relevant market of software copyright, it is reasonable to assess whether software copyright owners have a dominant position in the relevant market. When assessing a dominant position, there following aspects are preferential: 1. the market share of software copyright owners and competitive situation in the relevant market; 2. the ability to control the sales market or the raw material procurement market; 3. the financial and technical conditions of software copyright owners; 4. The extent of reliance on software copyright owners by other business operators in the transactions; 5. The degree of difficulty for other business operators to enter the relevant market.There are manifestations of software copyright owners who have a dominant position to abuse the monopoly of software copyright: 1. excessive pricing; 2. predatory pricing; 3. refusal to license; 4. restriction on license channels; 5. tie-in sales; 6. price discriminatory.The administration enforcement bodies regarding monopoly conduct of software copyright include the Price Inspection Department of NDRC and the Anti-monopoly & Unfair Competition Bureau of SAIC. Those software copyright owners and the relative enterprises that violate the Monopoly Law shall assume the responsibility of administrative penalty and liability of civil compensation...