The record industry and competition law in the twenty-first century

Chiscenco, O. 2009. The record industry and competition law in the twenty-first century. PhD thesis University of Westminster School of Law

TitleThe record industry and competition law in the twenty-first century
TypePhD thesis
AuthorsChiscenco, O.

This research argues for recognition of the importance of cultural industries and cultural diversity and their special treatment by competition law. It uses the record industry as a tool to demonstrate how independent music labels contribute to diversity in a record business dominated by four major players. Whilst some scholars have advocated the inclusion of cultural issues under competition law, no concrete suggestions have been made as to how exactly to do that and no study has been made to determine what pitfalls may lay in doing so. This thesis deals with the lacuna by adopting a number of

approaches and shows why cultural industries require special protection by competition law. The aforesaid is the unique feature of this thesis, which should help bridge the existing gap between theory and practice.

In order to address the research question, a three-stranded methodological approach is utilised. Firstly, the historical analysis demonstrates the different competitive dynamics of the record industry since its inception, and it shows that musical diversity generally increased when the industry concentration was low. Secondly, the legal analysis

focuses on the EU merger test and Article 81 of the EC Treaty; the US approach is also analysed for comparative purposes. Legal analysis examines how competition law has dealt with the regulation of competitive dynamics in the record industry, drawing analysis from a number of mergers and acquisitions, most notably the merger wrangling between Sony and BMG lasting for 5 years overall. Thirdly, qualitative interviews probe into why independent labels are important and what effect the recent mergers had on the independent sector.

The main finding of this study is that cultural diversity can be incorporated into the EU merger test as well as Article 81(3) of the EC Treaty as a non-competition concern and therefore should be taken into account by decision-makers.

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