Attheraces v British Horseracing Board: What price abuse of dominance?

Abstract

This article concerns the interplay between the competition rules (abuse of dominance) and intellectual property; the extent to which dominant companies are free to set the price for access to their IP; and excessive and discriminatory pricing. The Court of Appeal of England and Wales held that the British Horseracing Board (BHB) had not breached the competition rules. It overturned the High Court's decision that the BHB had charged excessive prices for access to its database of information. The Court of Appeal found that in determining whether a price is excessive (and therefore a breach of competition law), it is not sufficient to look only at the level of the dominant company's return on its costs. This ‘cost +’ assessment is only one element of the analysis which must be carried out. This case is apparently good news for IP owners, as it suggests that the legal test for showing excessive pricing is very high. However, the case also suggests that bringing a private action to enforce the competition rules will remain extremely difficult. This may have a chilling effect on the development of the law and in some cases may be to the public's detriment.