The television companies' appeal against the decision in Magill - the television listings case - has been denied.

The case concerned refusal of the television companies to provide third parties with programme schedule information and to allow them to produce a weekly guide of all television programmes.

No such weekly TV guide was available in the UK and Ireland, and there was consumer demand for one which was unsatisfied.The judgment is short and leaves a number of matters unclear.

However, the following points can be derived from the decision:-- in principle a copyright holder can reserve to him or herself the exclusive right to reproduce the protected work;-- however, refusal to licence can in exceptional circumstances be an abuse of a dominant position contrary to art 86 of the Treaty of Rome;-- refusal to provide information can, in exceptional circumstances, be an abuse of a dominant position contrary to art 86 of the Treaty of Rome;-- the EU is not party to the Berne Convention.

Art 9 of the Berne Convention cannot be relied on to limit the powers of the EU (ie the European Commission).It is not clear whether this is an important case with implications for other industries, or a case on very specific and individual facts which should be confined to those facts.The idea that the EU is not bound by a treaty signed by all the member states regardless of the date of signature is a very worrying concept.

If this is the case, it would be impossible for the member states to amend the Treaty of Rome, which cannot be correct.

Similarly, even if each and every member state signed a particular treaty the Treaty of Rome would always take precedence: in other words, the member states could not fulfil their treaty obligations under GATT or other important international agreements.

Again this cannot be right.The General Agreement on Tariffs and Trade - agreement on Trade Related aspects of Intellectual Property Rights (GATT TRIPS) was not considered in this judgment, as it had not been signed at the relevant time, and compulsory licensing of copyright would in general also be contrary to GATT TRIPS.

It is arguable that the facts of Magill constituted one of the 'certain special cases' referred to in art 13 of GATT TRIPS.Broadcasting companies operate in a highly regulated public service industry in which franchises are granted and controlled by government.

The listings information is something they have because of that monopoly.

Certainly the government must have come to that view when enacting the Broadcasting Act 1990, which overtook the Magill decision in the UK by compelling the television companies to provide listings information to third parties.It was not made at all clear what 'exceptional circumstances' would be.

In this case there was a specific constant consumer demand for a product which was not being met at all, and there was no legitimate reason for the refusal to license.

This is clearly different from the position where an owner of copyright is meeting the demand by manufacturing.

Rather than the copyright owner refusing to license at all, this was a situation where the copyright owner did license (t o daily newspapers) but imposed restrictive terms on its licensees.It was suggested when the first instance decision came out that a parallel would be drawn between a refusal to give listings information and a refusal to provide interface information sufficient to enable someone to produce compatible software.

This specific question has been dealt with by the Software Directive.

Information concerning standards and protocols might arguably fall into the same category.

This is a long way from requiring a manufacturer to give confidential information, such as source code, to potential competitors.

However, the question of how much information third parties seeking to produce software compatible with existing software and hardware are entitled to is very much a like issue.The information in Magill was information which was required by the public in using their television sets.

It was made public by the possessors of the information in any case.

Again, this is different from information which is kept confidential by its possessor.It was implied in this judgment that the position would have been the same had other intellectual property rights been at issue.

The Court of First Instance drew the classic EU distinction between 'true monopoly rights' such as registered designs and patents, and copyright.

The ECJ, although it appeared to approve the reasoning of the Court of First Instance, did not draw this distinction.Arguably the position would also be different where the person refusing to provide information and to license copyright was outside the EU.

Thus any non EU company would be well advised to consider removing relevant information from the jurisdiction.The saving grace of this judgment is that, on the face of it, it is confined to 'exceptional circumstances'.

For this reason the more alarmist interpretations of Magill are, in my view, unlikely to be realised.

The novelist who refuses to allow his or her work to be serialised is probably not going to be forced to do so.

However, one of the most serious problems with this judgment is its lack of clarity and the absence of any attempt to explain in what exceptional circumstances it will apply.

We will have to wait until a more 'ordinary' case is heard before we can see whether it has in fact changed anything.It is likely that this judgment will lead to further challenges to refusals to license intellectual property rights, in particular in the computer and communications field, and the court may then have to clarify whether the judgment has any application beyond its facts.-- Radio Telefis Eireann and Independent Television Publications Ltd (supported by Intellectual Property Owners Inc, intervener) v Commission of the European Communities (supported by Magill TV Guide Ltd, intervener at first instance) [1995] The Times, 17 April, ECJ joined cases C-241/91P and C-242/91P