Regulating Competition and Property in the Digital Economy – The Interface Between Data, Privacy, Intellectual Property, Fairness and Competition Law
53 Pages Posted: 19 Jan 2018 Last revised: 27 Apr 2018
Date Written: January 17, 2018
In the Internet of Things, access to Data regarding customers, markets and the industry as a whole will make the difference in reference to whether regular brick-and-mortar firms can compete successfully or whether they would fall foul of competition. These firms will often provide their Data to a Cloud. However, access to the Cloud on fair business terms and the possibility to Changes Cloud service provider seem to be increasingly difficult, especially for the brick-and-mortar firms, that soon will be connected to the Internet of Things. Indeed, the Cloud providers are increasingly controlling not only their own Data, but can alos access the Data provided by firms that purchase Cloud services. This article identifies and addresses these issues, and discusses whether Competition Law can address them, ex post, or whether there is a need for legislative measures, ex ante, so that brick-and-mortar firms may access and make use of all the possibilities that the Internet of Things harbours. More specifically, the article addresses whether brick-and-mortar firms should have some kind of right to port Data vis-a-vis Cloud providers so to address their needs, and also so to increase competition and rivalry. In the end, the author suggests that Competition Law can suffice as an effective tool in the Digital Economy, if the special consequences of indirect network effects and tipping are taken into consideration in the Competition Law analysis. The article thereby presents an antitrust goal, Interoperability, and discusses the notion of Interoperability (Neutrality) and why that could be a value to be protected under Competition Law in the Digital Economy. Several leading EU Competition Law cases such as the Microsoft, the Huawei and, also, the recent Commission Google case, being analysed in the article, can be explained based on the value of Interoperability. Moreover, Interoperability could be the theoretical reason to implement a right to port databases/datasets for the brick-and-mortar firms. Would Interoperability be infringed, Antitrust harm may be identified, while to promote Interoperability and Competition, the brick-and-mortar firms should have the right to port databases/datasets between Cloud providers, or back in-house.
Keywords: Digital Economy, The Cloud, Interoperability, Internet of Things, Industrial Internet, Standardization, SEP, Competition Law, Antitrust, Big Data, Open Data, Intellectual Property Law, Privacy, Data Protection, PSI, Platforms, Ecosystem, Interoperability Neutrality, Amazon, Google, Ericsson, Nokia
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