Vol 7 No 1 - Roger Williams University School of Law

Court of First Instance in concluding that such conductwas abusive was, first, the fact that there was, accordingto the findings of the Court of First Instance, no actual orpotential substitute for a weekly television guide offeringinformation on the programmes for the week ahead. Onthis point, the Court of First Instance confirmed theCommission’s finding that the complete lists ofprogrammes for a 24-hour period—and for a 48-hourperiod at weekends and before public holidays—publishedin certain daily and Sunday newspapers, and thetelevision sections of certain magazines covering, inaddition, “highlights” of the week’s programmes, wereonly to a limited extent substitutable for advanceinformation to viewers on all the week’s programmes.Only weekly television guides containing comprehensivelistings for the week ahead would enable users to decidein advance which programmes they wished to follow andarrange their leisure activities for the week accordingly.The Court of First Instance also established that therewas a specific, constant and regular potential demand onthe part of consumers.Thus the appellants—who were, by force ofcircumstance, the only sources of the basic information onprogramme scheduling which is the indispensable rawmaterial for compiling a weekly television guide—gaveviewers wishing to obtain information on the choice ofprogrammes for the week ahead no choice but to buy theweekly guides for each station and draw from each ofthem the information they needed to make comparisons.The appellants’ refusal to provide basic information byrelying on national copyright provisions thus preventedthe appearance of a new product, a comprehensive weeklyguide to television programmes, which the appellants didnot offer and for which there was a potential consumerdemand. Such refusal constitutes an abuse under heading(b) of the second paragraph of Article 86 of the Treaty.Second, there was no justification for such refusaleither in the activity of television broadcasting or in thatof publishing television magazines.