Table of Contents

Digital Markets, Rules of Conduct and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement

Valentina Moscon, Max Planck Institute for Innovation and Competition, University of Trento - Faculty of Law
Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)

Intellectual Property Justification for Artificial Intelligence

Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
Jörg Hoffmann, Max Planck Institute for Innovation and Competition
Stefan Scheuerer, Max Planck Institute for Innovation and Competition

Exposing the Public Interest Dimension of the Digital Single Market: Public Undertakings as a Model for Regulating Data Sharing

Heiko Richter, Max Planck Institute for Innovation and Competition

Vertical Restraints Under Indian Competition Law: Whither Law and Economics

Vikas Kathuria, Max Planck Institute for Innovation and Competition

Position Paper on the Envisaged Reform of the German Patent Act

Luc Desaunettes-Barbero, Max Planck Institute for Innovation and Competition, University of Strasbourg - CEIPI
Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
Daria Kim, Max Planck Institute for Innovation and Competition
Matthias Lamping, Max Planck Institute for Innovation and Competition
Peter R. Slowinski, Max Planck Institute for Innovation and Competition
Hanns Ullrich, Max Planck Institute for Innovation and Competition


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"Digital Markets, Rules of Conduct and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement" Free Download
Forthcoming, G. Frosio (ed), The Oxford Handbook of Online Intermediary Liability, Oxford: Oxford University Press, 2020
Max Planck Institute for Innovation & Competition Research Paper No. 20-01

VALENTINA MOSCON, Max Planck Institute for Innovation and Competition, University of Trento - Faculty of Law
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RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
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This chapter will explore the liability of online intermediaries (OIs) under European law, with a focus on infringements of rights and legal interests other than IPRs. The main research question is whether European law adopts a consistent regulatory approach with regard to content hosted by OIs against rules on market functioning that do not assign exclusive rights but simply impose rules of conduct (e.g. rules on unfair commercial practices). This chapter investigate whether and under which conditions OIs are liable and—beyond the liability of OIs—whether the interests protected by European laws governing the functioning of the market receive the same level of protection in different contexts. To carry on such analysis, the chapter takes into consideration as case studies two bodies of the law, the first one dealing with online unfair commercial practices (UCPs) and the second one with the unlawful acquisition, use, and disclosure of trade secrets. After having summarized the distinguishing features of the safe harbour regime and its interplay with injunctive relief, the chapter will focus on the UCPs and Trade Secrets Directives in relation to the position of OIs. Reference is made to the criteria of interpretation of European law in order to assess the relationship between specific provisions and the concurrent regime set forth in the e-Commerce Directive. Finally, this chapter assesses the emerging results, highlighting the issues which hinder the creation of a coherent and satisfying legal framework.

"Intellectual Property Justification for Artificial Intelligence" Free Download
Draft chapter. Forthcoming in: J.-A. Lee, K.-C. Liu, R. M. Hilty (eds.), Artificial Intelligence & Intellectual Property, Oxford, Oxford University Press, 2020, Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No. 20-02

RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
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JÖRG HOFFMANN, Max Planck Institute for Innovation and Competition
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STEFAN SCHEUERER, Max Planck Institute for Innovation and Competition
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Against the backdrop of the current discussion of how AI reshapes certain IP paradigms, this chapter reassesses the need for IP protection in AI markets per se. We assess the question of justification of IP rights for both AI as a tool and AI-generated output in light of the very theoretical foundations of IP protection (from both legal embedded deontological and utilitarian economic standpoints). Traditionally, IP is granted due to deontological reasoning according to which a human creator’s efforts and personality have to be awarded and protected, and economic reasoning, according to which exclusive rights in intangible goods have to be established in order to remedy market failure in public goods markets. IP ought to serve as a regulatory system of stimulation of creation and innovation using market forces to achieve this goal. Based on the current state of knowledge however, it seems that specific market implications of the widespread use of most AI applications may have altered the justification for AI-related IP protection in certain cases. Whereas this seems particularly true regarding AI tools, the case for AI outputs may be different.

"Exposing the Public Interest Dimension of the Digital Single Market: Public Undertakings as a Model for Regulating Data Sharing" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 20-03

HEIKO RICHTER, Max Planck Institute for Innovation and Competition
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The availability of public and private data plays a crucial role for the digital single market. Increasing the availability of data by incentivizing and mandating public and private actors to share their data ranks high on the EU policy agenda. When designing suitable legal data sharing regimes, there is an inevitable need to balance multiple public and private interests. While there have been considerable discussions on data sharing between private businesses (B2B), no binding rules have been established yet. In contrast, public undertakings are increasingly covered by mandatory rules. This article focuses on data sharing regulation for public undertakings, which lie at the state-market interface. The way their data is regulated offers a prototype for how to reconcile business reasoning with the public interest. In particular, the article inquires into the design of the recast Public Sector Information (PSI) Directive regarding public undertakings as well as into different national rules which mandate access to public undertakings’ data. On this basis, it discusses four general characteristics which can inform other strands of regulatory debate on data sharing in the EU.

"Vertical Restraints Under Indian Competition Law: Whither Law and Economics" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 20-04

VIKAS KATHURIA, Max Planck Institute for Innovation and Competition
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The correct welfare assessment of vertical agreements in competition law is a difficult craft. The more mature jurisdictions such as the EU and the US have struggled to develop the optimal framework. This paper scrutinises the vertical agreements cases of the Competition Commission of India (CCI) that is now ten years old. The objective is to understand the overall level of legal and economic analysis in the competition case, and also to assist the CCI in strengthening its legal and economic framework vis-à-vis vertical agreements. The scrutiny of some leading cases reveals that there are some legal ambiguities in the interpretation. More problematic, however, is the economic analysis that is incoherent and truncated. The scrutiny also reveals overreliance on the EU jurisprudence that does not go along with the legislative scheme of the Indian Act. The paper draws out some lessons towards the end.

"Position Paper on the Envisaged Reform of the German Patent Act" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 20-05

LUC DESAUNETTES-BARBERO, Max Planck Institute for Innovation and Competition, University of Strasbourg - CEIPI
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RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
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DARIA KIM, Max Planck Institute for Innovation and Competition
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MATTHIAS LAMPING, Max Planck Institute for Innovation and Competition
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PETER R. SLOWINSKI, Max Planck Institute for Innovation and Competition
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HANNS ULLRICH, Max Planck Institute for Innovation and Competition
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This position paper of the Max Planck Institute for Innovation and Competition provides comments on the amendments proposed by the German Ministry of Justice and Consumer Protection in its discussion draft of January 2020 on the modernization and simplification of the German Patent Act. While the Institute generally welcomes the initiative, the paper offers some suggestions aimed at increasing precision in the areas of first, the concept and the implementation of the proportionality test for granting injunctive relief, and, second, the need for enhanced protection of trade secrets in patent disputes.

With regard to the proportionality assessment, the Institute suggests that, rather than reducing it to an application of the principle of good faith, the concept of proportionality should be interpreted and applied in light of the ratio legis of patent protection with a view to preventing dysfunctional effects potentially resulting from the exercise of the exclusive right and the associated claim to an injunction. Scenarios involving complex products, non-practicing entities and standard-essential patents are used to illustrate the approach. As regards the weighing and balancing of interests when assessing proportionality, the position paper argues that it is neither desirable nor appropriate to prioritize the interests of the patentee over those of the infringer as a matter of principle. In addition, it is not only the interests of parties to the dispute, but also those of third parties, in particular the public interest, that should be taken into account.

With regard to the protection of trade secrets in patent disputes, the position paper refers to certain procedural insufficiencies of the Trade Secrets Act to adequately protect the defendant’s secrecy interests. It also points out a potential loophole in relation to the ‘Düsseldorf proceedings’ that may facilitate ‘fishing expeditions’.

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About this eJournal

The Max Planck Institute for Innovation and Competition Research Paper Series is a source for research papers authored by the Max Planck Institute for Innovation and Competition academic staff (Eds.: Prof. Josef Drexl, Dir., Prof. Dietmar Harhoff, Exec. Dir., Prof. Reto M. Hilty, Dir.). Papers cover topics on intellectual property law (copyright, patent, trademark law), competition law (law of unfair competition, antitrust law), innovation research and entrepreneurship. To access all the papers in this series please use the following URL: http://ssrn.com/link/Max-Planck-Innovation-RES.html

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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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