Bundeskartellamt, hier.
Wednesday, August 20, 2014
Tuesday, August 19, 2014
Monday, August 18, 2014
Sunday, August 17, 2014
Saturday, August 16, 2014
Friday, August 15, 2014
Thursday, August 14, 2014
Wednesday, August 13, 2014
Tuesday, August 12, 2014
Monday, August 11, 2014
Saturday, August 09, 2014
Friday, August 08, 2014
Entertaining Summer Reading Re MFNs
"THE CHAIRMAN: We saw from Mr Italianer's speech at Innsbruck that the CMA could have followed the German approach and actually tackled the rate parity issue head on, but it chose not to do that? MISS BACON: The German approach was to attack the MFN provision, the OFT's Approach was to look at the discounting restriction. So there are two different mechanisms of addressing the issues in this market place. This is not a challenge to the OFT ---- THE CHAIRMAN: It is not a competition between competition authorities, I know that. MISS BACON: This appeal is not a challenge to the scope of the CMA's investigation. THE CHAIRMAN: I know that too. MISS BACON: I am simply answering the question as to why they were. As I have pointed out, it is in Mr Rasmussen's evidence. MR WILKS: Although MFNs were highlighted in the Statement of Objections. MISS BACON: I am going to come to that. They were highlighted in the Statement of Objections as part of the relevant context which was why the OFT was opening in this investigation. What the OFT said in the Statement of Objections was that it was not, it had not investigated the extent to which MFNs did exacerbate these restrictions of competition, and it is common ground, undisputed, that the focus of the OFT's investigation was not on MFNs, it was on the discounting restrictions, it was on what was regarded as RPM."
Here.
Here.
Thursday, August 07, 2014
Implication of Globalisation for Competition Policy: The Need for International Co-Operation in Merger and Cartel Enforcement
A. Capobianco, J. Davies, S. Ennis, here.
Thursday, July 31, 2014
Copia privata: la Siae gioca a babbo natale contro la Apple
G. Scorza, qui.
Consumatore italiano ben più "tollerante" di quello britannico (e la buffonata dell'acquisto ed elargizione di telefonini difficilmente immaginabile oltremanica):
"The Government do not believe that British consumers
would tolerate private copying levies. They are inefficient,
bureaucratic and unfair, and disadvantage people who
pay for content."
Consumatore italiano ben più "tollerante" di quello britannico (e la buffonata dell'acquisto ed elargizione di telefonini difficilmente immaginabile oltremanica):
"The Government do not believe that British consumers
would tolerate private copying levies. They are inefficient,
bureaucratic and unfair, and disadvantage people who
pay for content."
Wednesday, July 30, 2014
Exclusivité des droits de diffusion des matches de rugby: accord suspendu
Autorité de la concurrence, Décision n° 14-MC-01 du 30 juillet 2014, ici; communiqué de presse ici.
Alinéa 234: "Une pratique consistant à réserver l’attribution de droits attractifs à l’opérateur dominant est donc susceptible de contribuer à la fermer le secteur de la télévision payante en France.
Comme le souligne le CSA, cette atteinte au marché serait d’autant plus néfaste que les pratiques dénoncées interviennent alors que le principal concurrent de l’entreprise dominante, la société beIN Sports, n’est actif sur le marché que depuis deux ans, et qu’il
est encore en phase de conquête d’abonnés."
Alinéa 234: "Une pratique consistant à réserver l’attribution de droits attractifs à l’opérateur dominant est donc susceptible de contribuer à la fermer le secteur de la télévision payante en France.
Comme le souligne le CSA, cette atteinte au marché serait d’autant plus néfaste que les pratiques dénoncées interviennent alors que le principal concurrent de l’entreprise dominante, la société beIN Sports, n’est actif sur le marché que depuis deux ans, et qu’il
est encore en phase de conquête d’abonnés."
UK Private Copy Debate
House of Lords, Official Report, here (pp. 1553-1582).
UK Goverment: "The presence of the contract override
clause gives users, consumers and businesses certainty
and clarity that the exceptions apply in all circumstances
regardless of the detail of a contract. Without such
clauses restrictive contract terms could prevent the
uses permitted by the exceptions, thus preventing benefits
from being realised. This is not merely a hypothetical
fear. Many responses to the various consultations have
told us that contracts permitting access to copyright
works frequently contain terms that prevent users
from carrying out activity that otherwise would be
permitted by law (...). The law will apply to contracts regardless of
the date on which they were formed but will take effect
only after the new law comes into force. The contract
override provisions simply ensure that, where the law
provides for an exception to copyright, people are able
to rely on that law without having to work out whether
there is a contract term to the contrary creating a
whole patchwork of different legal situations.
Ensuring that the personal copying exception cannot
be overridden by contract terms will mean that consumers
are given clarity and certainty over what they can do
with the media they buy. Most people assume that the
law already allows them to make the type of personal
copies covered by our legislation. Very few people read
the detailed licensing terms that accompany digital
downloads. We want the goods so we just tend to
accept the terms. Ensuring that the new law on personal
copying applies in all circumstances, regardless of
contract and licensing terms, will bring much needed
clarity to the law and fairness for consumers, which I
welcome" (p. 1575).
"The Government believe that the copyright system has not
kept pace with the digital revolution. As a result, a
great many intuitively acceptable activities are illegal
or uncertain. These changes relating to private copying,
parody and use of quotations form part of a package
that should make copyright works more valuable to
all, give users clarity about their rights and build
respect for copyright in the process. They will contribute
to a more modern statute book that meets the challenges
of an increasingly digital and changing world" (p. 1580).
UK Goverment: "The presence of the contract override
clause gives users, consumers and businesses certainty
and clarity that the exceptions apply in all circumstances
regardless of the detail of a contract. Without such
clauses restrictive contract terms could prevent the
uses permitted by the exceptions, thus preventing benefits
from being realised. This is not merely a hypothetical
fear. Many responses to the various consultations have
told us that contracts permitting access to copyright
works frequently contain terms that prevent users
from carrying out activity that otherwise would be
permitted by law (...). The law will apply to contracts regardless of
the date on which they were formed but will take effect
only after the new law comes into force. The contract
override provisions simply ensure that, where the law
provides for an exception to copyright, people are able
to rely on that law without having to work out whether
there is a contract term to the contrary creating a
whole patchwork of different legal situations.
Ensuring that the personal copying exception cannot
be overridden by contract terms will mean that consumers
are given clarity and certainty over what they can do
with the media they buy. Most people assume that the
law already allows them to make the type of personal
copies covered by our legislation. Very few people read
the detailed licensing terms that accompany digital
downloads. We want the goods so we just tend to
accept the terms. Ensuring that the new law on personal
copying applies in all circumstances, regardless of
contract and licensing terms, will bring much needed
clarity to the law and fairness for consumers, which I
welcome" (p. 1575).
"The Government believe that the copyright system has not
kept pace with the digital revolution. As a result, a
great many intuitively acceptable activities are illegal
or uncertain. These changes relating to private copying,
parody and use of quotations form part of a package
that should make copyright works more valuable to
all, give users clarity about their rights and build
respect for copyright in the process. They will contribute
to a more modern statute book that meets the challenges
of an increasingly digital and changing world" (p. 1580).
EU Data Protection law: a 'right to be forgotten'?
House of Lords EU Sub-Committee on Home Affairs, Health and Education, here.
Tuesday, July 29, 2014
Monday, July 28, 2014
Economic argument on the amendment of the Intellectual Property Law (IPL) with regard to aggregation of information
Afi, Report prepared for Coalición ProInternet, here.
AEEPP pide a Competencia que investigue el impacto del canon AEDE en los pequeños y medianos editores
Asociación Española de Editoriales de Publicaciones Periódicas, aquì.
Friday, July 25, 2014
Dénigrement et abus de position dominante
Décision n° 14-D-08 du 24 juillet 2014, Autorité de la concurrence,ici.
Summer Reading: Misused English Words and Expressions in EU publications
European Court of Auditors, here.
Thursday, July 24, 2014
Wednesday, July 23, 2014
Tuesday, July 22, 2014
When economics met Antitrust : the second Chicago School and the Economization of Antitrust law
P. Bougette, M. Deschamps, F. Marty, here.
Friday, July 04, 2014
Superare gli ostacoli alla competitività per rafforzare la crescita del paese
AGCM, Segnalazione per la legge annuale della concorrenza inviata a Governo e Parlamento, qui.
Thursday, July 03, 2014
Wednesday, July 02, 2014
Tuesday, July 01, 2014
Monday, June 30, 2014
Sunday, June 29, 2014
Friday, June 27, 2014
Thursday, June 26, 2014
How the Court’s “looks-like-cable-tv” test in Aereo protects the cloud
G. Manne, R. Radia & B. Sperry, here.
Wednesday, June 25, 2014
UK IP Law Professors on Parody and Quotation, and Personal Copying for Private Use
Letter sent to the Parliamentary Scrutiny Committee on Secondary Legislation, here.
Tuesday, June 24, 2014
Monday, June 23, 2014
Saturday, June 21, 2014
Friday, June 20, 2014
Thursday, June 19, 2014
From Vision to Reality: Copyright, Technology and Practical Solutions Enabling the Media & Publishing Ecosystem
European Publishers Council, here.
At p. 34 "EPC does not oppose that principle (non-overridability, SV) and, indeed, it is already reflected in the Software Directive. It is right that exceptions should not be overridden by the inclusion of clauses into contracts which have the effect of stopping lawful users
from taking advantage of the exceptions." Caveats follow...
Interestingly, roughly the same reasoning ("it is already reflected in the Software Directive") could possibly apply to a general digital exhaustion principle, to which publishers are instead opposed (p. 30 ff.)
At p. 34 "EPC does not oppose that principle (non-overridability, SV) and, indeed, it is already reflected in the Software Directive. It is right that exceptions should not be overridden by the inclusion of clauses into contracts which have the effect of stopping lawful users
from taking advantage of the exceptions." Caveats follow...
Interestingly, roughly the same reasoning ("it is already reflected in the Software Directive") could possibly apply to a general digital exhaustion principle, to which publishers are instead opposed (p. 30 ff.)
Public private partnerships in Italy: A snapshot of the main issues
F. Antellini Russo, Presentation here.
Wednesday, June 18, 2014
The Handbook of Competition Enforcement Agencies 2014
Here (only some country reports are free to view).
Tuesday, June 17, 2014
Monday, June 16, 2014
OLG Hamm: Keine Erschöpfung an digitalen Kopien von E-Books und Hörbüchern
Urteil v. 15.05.2014, Az. 22 U 60/13, hier.
Friday, June 13, 2014
Thursday, June 12, 2014
CMA proposes ban on "wide" retail price MFN between price comparison websites and insurers in the private motor insurance market (and ban on "narrow" MFN if "equivalent behaviour")
Provisional decision on remedies here.
See also Appendices 4.1 (Single-homing and the threat of delisting), 4.2 (Extending the remedy to narrow MFNs), and 4.3 (Effectiveness of advertising expenditure on PCWs), here.
Remedy proposed (para 4.71):
(a) A prohibition on PCWs and PMI providers entering into or performing agreements that include an MFN relating to the sale of PMI, except narrow MFNs, where ‘narrow MFNs’ are defined as covering the insurance provider website but excluding possible aggregator platforms.
(b) A prohibition on behaviours which have as their effect the elimination or reduction of competition between PCWs in a similar way to the harm identified by wide MFNs (namely, restricting entry to the PCW market, reducing innovation by PCWs and increasing premiums for motor insurance to the retail customer). This measure will apply to those PCWs which generate more than 300,000 PMI sales per year [this would mean that narrow MFNs which have the same anticompetitive effects as wide MFNs are also prohibited, SV ]
(d) In order to monitor equivalent behaviours, those PCWs above the 300,000 PMI sales per year threshold will be required to submit compliance statements to the CMA every quarter for the first two years following the order and then once a year. These compliance statements would need to list all delisting actions during the relevant period, setting out the reasons for the delisting.
See also Appendices 4.1 (Single-homing and the threat of delisting), 4.2 (Extending the remedy to narrow MFNs), and 4.3 (Effectiveness of advertising expenditure on PCWs), here.
Remedy proposed (para 4.71):
(a) A prohibition on PCWs and PMI providers entering into or performing agreements that include an MFN relating to the sale of PMI, except narrow MFNs, where ‘narrow MFNs’ are defined as covering the insurance provider website but excluding possible aggregator platforms.
(b) A prohibition on behaviours which have as their effect the elimination or reduction of competition between PCWs in a similar way to the harm identified by wide MFNs (namely, restricting entry to the PCW market, reducing innovation by PCWs and increasing premiums for motor insurance to the retail customer). This measure will apply to those PCWs which generate more than 300,000 PMI sales per year [this would mean that narrow MFNs which have the same anticompetitive effects as wide MFNs are also prohibited, SV ]
(d) In order to monitor equivalent behaviours, those PCWs above the 300,000 PMI sales per year threshold will be required to submit compliance statements to the CMA every quarter for the first two years following the order and then once a year. These compliance statements would need to list all delisting actions during the relevant period, setting out the reasons for the delisting.
Wednesday, June 11, 2014
Putting the right to data portability into a competition law perspective
I. Graef, J. Verschakelen, P. Valcke, here.
Tuesday, June 10, 2014
Sunday, June 08, 2014
Saturday, June 07, 2014
Friday, June 06, 2014
Key points in the Open Internet Project's legal action (Google Search)
OIP, here.
Refusal to provide referrer data evoking privacy reasons, as easily anticipated (page 27).
Refusal to provide referrer data evoking privacy reasons, as easily anticipated (page 27).
Thursday, June 05, 2014
No Market Power Needed In 2nd Circuit Vertical Restraint Cases
United States v. American Express Co, No. 10-CV-4496, May 7, 2014 order, here.
CJEU: The ‘temporary copies’ exception applies to on-screen and cached copies
C‑360/13 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, here.
AG: A Member State can authorise libraries to digitise books and make them available at electronic reading posts
C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG Press Release here.
"...se contenter d’une simple offre du titulaire du droit d’auteur permettrait de subordonner l’application de ladite exception à des décisions unilatérales, ce qui, en conséquence, priverait l’exception d’effet utile pour les établissements concernés. L’interprétation téléologique, quant à elle, exige également, compte tenu de l’objectif d’intérêt général poursuivi par le législateur de l’Union, à savoir promouvoir la diffusion du savoir et de la culture, que l’utilisateur puisse invoquer cette exception (24).
"...se contenter d’une simple offre du titulaire du droit d’auteur permettrait de subordonner l’application de ladite exception à des décisions unilatérales, ce qui, en conséquence, priverait l’exception d’effet utile pour les établissements concernés. L’interprétation téléologique, quant à elle, exige également, compte tenu de l’objectif d’intérêt général poursuivi par le législateur de l’Union, à savoir promouvoir la diffusion du savoir et de la culture, que l’utilisateur puisse invoquer cette exception (24).
...
De la même façon qu’il est loisible à un utilisateur d’une bibliothèque, dans les limites posées par la législation nationale, de photocopier les pages des ouvrages physiques présents dans le fonds et à une bibliothèque de le permettre, l’utilisateur peut imprimer des pages d’une copie numérique et la bibliothèque peut le permettre (57)"
De la même façon qu’il est loisible à un utilisateur d’une bibliothèque, dans les limites posées par la législation nationale, de photocopier les pages des ouvrages physiques présents dans le fonds et à une bibliothèque de le permettre, l’utilisateur peut imprimer des pages d’une copie numérique et la bibliothèque peut le permettre (57)"
Wednesday, June 04, 2014
HRS Decision in English (retail MFN)
Bundeskartellamt, here. For "general" information purposes only.
Tuesday, June 03, 2014
Monday, June 02, 2014
Saturday, May 31, 2014
Friday, May 30, 2014
Wednesday, May 28, 2014
UN Special Rapporteur's concerns regarding Italy's online copyright enforcement
F. La Rue, here (Word file), p.13 f.
"The issue of intellectual property (...) was discussed during the visit and a number of concerns were raised regarding the adoption of additional measures for the protection of copyright at the expense of freedom of expression. For the Special Rapporteur, the establishment of norms protecting intellectual property should remain exclusively within the purview of the Parliament.
The Special Rapporteur also underlines that, although AGCOM may by law apply some limitations on online content, the removal of online content should be decided by the Court on a case-by-case basis."
"The issue of intellectual property (...) was discussed during the visit and a number of concerns were raised regarding the adoption of additional measures for the protection of copyright at the expense of freedom of expression. For the Special Rapporteur, the establishment of norms protecting intellectual property should remain exclusively within the purview of the Parliament.
The Special Rapporteur also underlines that, although AGCOM may by law apply some limitations on online content, the removal of online content should be decided by the Court on a case-by-case basis."
Old friends in new frocks? MFN clauses in the online hotel booking sector/19
(Previous installments here)
From a more evolutionary perspective, it is also noteworthy
that in an era of big data firms at the different levels of the value chain have the potential to constantly gain better market insights.
Based on the results of data analysis, both producers and intermediaries may experiment by way of fine tuning their marketing
practices. In some respect, the uninterrupted and abundant flow of real-time, potentially
insightful data makes it imperative for every market participant to continually experiment and adapt.
Tuesday, May 27, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/18
(Previous installments here)
Finally, and more generally, it would be unreasonable to turn a blind
eye to the fact that the economic value extracted from consumers’ personal data is
essential to many Internet entrepreneurs. Safeguarding competition in an era of
big data requires a detailed understanding of how exactly user information fits
into these firms’ business models.
Monday, May 26, 2014
Friday, May 23, 2014
Thursday, May 22, 2014
Making Your Privacy Practices Public
K. Harris, Attorney General, California Department of Justice, here.
Does Google want to own the online travel-booking market?
TheEconomist, here.
This is the comment I left on the Economist's website: "As possible game changers, also worth mentioning are the investigations and decisions by competition authorities in the online hotel booking sector.They could make advertising in Google less crucial..."
This is the comment I left on the Economist's website: "As possible game changers, also worth mentioning are the investigations and decisions by competition authorities in the online hotel booking sector.They could make advertising in Google less crucial..."
Old friends in new frocks? MFN clauses in the online hotel booking sector/17
(Previous installments here)
This and other anticompetitive potentials of retail-price MFNs may be strengthened in the presence of a network of such clauses. Thus, the German Competition Authority found that the vast majority of hotels in Germany was under a retail MFN obligation with at least one of the three most popular hotel booking platforms, and this made practically impossible for an entrant platform to pursue a “consumers’ side” initiation/growth strategy based on commission-cuts and lower display prices.
This and other anticompetitive potentials of retail-price MFNs may be strengthened in the presence of a network of such clauses. Thus, the German Competition Authority found that the vast majority of hotels in Germany was under a retail MFN obligation with at least one of the three most popular hotel booking platforms, and this made practically impossible for an entrant platform to pursue a “consumers’ side” initiation/growth strategy based on commission-cuts and lower display prices.
Wednesday, May 21, 2014
Nespresso s'engage : le droit de la concurrence l'emporte-t-il ? Pas vraiment !
C. Bialès, M. Bechini, F.-X. Boudy, M. Carbonnel,G. de Boiscuillé, T. Schrepel, ici.
Old friends in new frocks? MFN clauses in the online hotel booking sector/16
(Previous installments here)
Tuesday, May 20, 2014
Old friends in new frocks? MFN clauses in the online hotel booking sector/15
(Previous installments here)
First, we have seen that there are “spillover” effects from retail
MFNs for other platforms and channels. In a context of seller-imposed retail
prices, or “agency” model, a single
wide MFN clause between a seller and a platform effectively prevents any other
platform from displaying prices lower than the MFN’d price (e.g. cheaper hotel
room rates, lower insurance premiums, etc.), thus creating a floor – or minimum
- price.
By contrast, agency pricing as such is not necessarily conducive to rate parity, or price
fixing, since it could well be in the seller’s interest to display different prices
on different platforms. Thus, for instance, the mobile game Hundreds is priced CHF5.00 on iTunes and CHF4.75 on Google Play, while the price of the racing
game Impossible Road is the same on both platforms.
Actually, competition authorities in the UK and Germany have
expressed serious concerns exactly because
retail MFN clauses prevent expansion and entry strategies by platforms based on
“selective” lower hotel prices and insurance premiums. In
fact, due to the spillover effects of wide MFNs, an online retailer cannot use
its ability to compete on commissions (or margins) in order to enter the market
and try to achieve the critical mass necessary for the platform to survive and, possibly, to thrive. Instead,
still under agency but without retail
MFNs, the same retailer could pursue a strategy of lowering the commission rate
applied to the seller with the expectation that the seller would then display
lower prices on the more cost-effective platform.
(To be continued)
Monday, May 19, 2014
Friday, May 16, 2014
Most-Favored-Nation Clauses Revisited: Legal and Economic Analysis and Proposal for a Guideline
G. Gürkaynak, A. Güner, J. Filson, S. Diniz, here (Word file).
Thursday, May 15, 2014
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Centre for a Digital Society , Video here . These are my very rough talking points on pay or okay in full length (more than I actually had...
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LG Frankfurt am Main, 2-06 O 172/09 (verkündet am 13.05.2009). Lesenswertes aus der Begründung (meine Hervorhebungen): "Vorstellbare ...
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Arstechnica.co.uk, here .
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TechCrunch, here .
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J. Morrison, here .
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Gigaom.com, here .
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P. Schaar, hier .
