Vol 7 No 1 - Roger Williams University School of Law

Third, and finally, as the Court of First Instance alsoheld, the appellants, by their conduct, reserved tothemselves the secondary market of weekly televisionguides by excluding all competition on that market sincethey denied access to the basic information which is theraw material indispensable for the compilation of such aguide.234The case is significant because it held that the copyright ownerwas not allowed to refuse to supply information, thereby makingthe TV listings tantamount to an essential facility.235 Thisdecision of the ECJ, then, provides a more robust view in thecontext of information as to when it is legitimate to refuse to deal.Melway236 provides yet another perspective on this notion ofrefusal to deal. Melway’s, who produced a street directory forMelbourne, Australian, refused to supply the respondent, awholesaler of motor vehicle parts and accessories, and a formerauthorised distributor, supplies of directories.237 The respondentalleged a breach of section 46 of the Trade Practices Act, whichprohibits “taking advantage” of substantial market power tolessen competition.238 The court confirmed the relevantfunctional market was the wholesale and retail market for streetdirectories in Melbourne and that Melway’s held in 80–90% of theretail market share for street directories.239 Melway’s, which hadbeen marketing the directories since 1966, had developed astrategic method for distributing and selling the directories.240The respondent had formerly been involved as a distributor buthad that right terminated pursuant to the distributorshipagreement.241The majority of the Australian High Court held that Melway’shad the right to determine how to distribute their informationalproduct.242 In the absence of any evidence that they had intended234. Id. at paras. 51-56 (citations and footnotes omitted).235. Id. at paras. 76-88.236. [2001] H.C.A. 13 (Austl.).237. Id.238. Id. at para. 1.239. Id. at para. 80.240. Id. The way they distribute could also be seen as an architectural constrainton the way they do business—like code—by slowing down copyists or, in other words,implementing their copyright.241. Id. at para. 87.242. [2001] H.C.A. 13 at para. 80.