Market Definition and Free Online Services: The Prospect of Personal Data as Price

No abstract available

Market definition and free online services: the prospect of personal data as price

No abstract available

Fining Google: a missed opportunity for legal certainty?

In December 2017, the European Commission imposed a record fine of €2.42 billion on Google in the Google Search (Shopping) Case for breach of Article 102TFEU. This article criticizes this fine as an infringement of the principle of legal certainty, since Google could not reasonably have foreseen that its conduct would amount to a breach of Article 102TFEU. It discusses the importance of legal certainty, as well as the broad powers and wide discretion the Commission enjoys in abuse of dominance cases, including the ability not to impose a fine. The article also provides an overview of the uncertainty which surrounded the application of the law at the time of the investigation, as well as the lack of clarity subsequently provided by the Decision. It is argued that, in imposing this record fine, the Commission has missed an opportunity to respect legal certainty, and combine the objective of deterrence with a desire to stimulate pro-competitive behaviour

Market definition and free online services: the prospect of personal data as price

No abstract available

The interpretation of a 'Strategic Market Status': A Response response to the public consultation by the UK Government on 'A new pro-competition regime for digital markets'

On 1 October 2021, the UK Government’s consultation on ‘a new pro-competition regime for digital markets’ closed. In this consultation, the government set out its proposals for new regime applicable to digital markets and sought feedback on these proposals. Under the proposed new regime a ‘Digital Markets Unit’ (DMU) within the Competition and Markets Authority (CMA) would strive to promote competition, including competitive outcomes, 1 in digital markets. To achieve this aim, the regime would target firms and activities which are considered to cause the greatest harm, the so-called digital firms with a ‘Strategic Market Status’ (SMS). In the first instance, the DMU would identify firms with SMS, who would then be subject to a code of conduct. The DMU could also intervene, where necessary, through ‘pro-competition interventions’. The Government is also considering the introduction of a merger regime specific to digital firms with SMS. Through this consultation, the Government sought the views of the public on a range of elements of the proposed regime. It identified a serious of questions under specific themes: ‘the Digital Markets Unit’, ‘Strategic Market Status’, ‘an enforceable code of conduct’, ‘pro-competitive interventions’, ‘regulatory framework’, and ‘merger reform’. Dr Magali Eben, Competition Lead at CREATe, submitted a response to the UK Government’s consultation. In her submission, she focused on the proposals related to the identification of firms with a ‘Strategic Market Status’, reflecting indirectly on the questions raised by the UK Government and providing further consideration of issues not directly raised in the Government’s list of questions. It is essential that the notion of a ‘Strategic Market Status’ (SMS) be more clearly defined, and its relationship to the notion of dominance in competition law expressly set out, for the regime to be effective

Personal data as price in market definition: a brief assessment

Services offered by Google, Facebook, and their kin are not truly free: users contribute to the monetization of the platform. The question is not wheth-er a market can be defined for zero-price services, but rather how this should be done. This short piece assesses whether personal data can be conceptualized as a price, to enable a substitution analysis for zero-price services. To do so, the piece focuses on the notion of price and its role in quantitative substitution analysis (when consumers react to price changes) in the context of personal data. It makes a reflection on the feasibility of conceptualizing personal data as a price. This would require answering two questions: first, is there a relationship of exchange between the user and the platform; second, can reactions to changes in personal data collection be used to assess substitution. The piece then briefly considers a revised SSNIP test with personal dat

Big tech and dominance: an overview of EU and national case law

No abstract available

The Re-Intermediation of the Music Industries Value Chain: Market Definition, Streaming Gatekeepers and the Control of Data

This submission responds to the Consultation by the Competition and Markets Authority (CMA) for its proposed market study on the ‘Music and streaming market’. Three key areas are identified that require particular attention: the definition of ‘music streaming market’, in particular understanding audio in a wider context, and where music streaming is a complementary but secondary component of business models; the relationships between self-release creators/micro-producers and music streaming services, in particular the role of established and new-entrant gatekeeping intermediaries, such as collective management organisations (CMOs) and artist and label (A&L) services; the control, interoperability and portability of data, in particular content identifiers, content metadata (such as ownership) and data associated with the digital identity of artists (such as their followers and other information about users and use). The Opinion draws on empirical research from legal and socio-cultural perspectives examining Intellectual Property issues in artist labour markets, along with research in the field of Competition Law in the context of multisided platforms

Gaming without Frontiers: Copyright and Competition in the Changing Video Game Sector

This working paper examines aspects of the contemporary video games sector at a time when incumbent and new-entrant market participants vie for primacy in the games industry. In this setting, ownership configurations and business models of key actors are in a state of flux. As consumers increasingly access culture ‘on-demand’ by way of cloud technologies, myriad opportunities and challenges emerge, not only for the video games sector, but for the wider cultural industries and society as a whole. It is in this very dynamic industrial landscape that the working paper is located. This paper marks a starting point for collaborative research on the games industry, drawing on the range of expertise within CREATe to provide a more holistic view of innovation, creativity, and power dynamics in games. The authors draw on different research specialisms and interests including: digitalisation of the cultural industries; copyright and notions of user creativity; digital services and product market definition; and competition law, innovation and the role of technology. The paper draws on each of these specialisms in turn. It starts by providing the industrial context of the discussion and analysis. This feeds into three analytical sections examining: user creativity and intellectual property in video games; the implications of industry concentration for different articulations of creativity; and finally, an exploration of the potential ramifications of developments in the games sector for innovation at the dawn of the metaverse era. In doing so, this work sets the scene for future research, which brings together competition law, IP law, and cultural policy perspectives. With questions formulated throughout the paper, the authors embark on a project to review the changing landscape of gaming and its implications for creativity, innovation, access and integration

Priorities for Generative AI Regulation in the UK: CREATe response to the Digital Regulation Cooperation Forum (DRCF)

In July 2023 the UK Digital Regulation Cooperation Forum (DRCF) issued a request for comment on the status of generative AI and priority regulatory concerns. The DRCF is comprised of four of the UK’s major regulators: the Competition and Markets Authority (CMA), the Financial Conduct Authority (FCA), the Information Commissioner’s Office (ICO) and Ofcom. As a research centre with a focus on technology regulation and evidence-based policy making, CREATe is undertaking research that addresses the specific questions raised by the DRCF. As we lay out in our response, the challenges posed by generative AI will be complex, imposing a need for regulators to actively engage with evidence on these dynamic and multifaceted effects. This response addresses key questions raised by the DRCF. Notably, the anticipated direction of travel of innovation of GenAI in the near term, an assessment of what citizens and consumers are currently doing with GenAI, how regulated services are making use of GenAI, what gaps in regulation currently exist, and how future regulation can be balanced with competition, innovation, consumer wellbeing and people’s rights and freedoms. We suggest that addressing these issues requires an interdisciplinary approach. Regulatory responses will need to be cross-domain, adaptable, and scalable to confront these multi-faceted challenges. Research which takes a holistic view incorporating various legal and policy domains can contribute to supporting cross-domain regulatory initiatives