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Intellectual Property, Free Trade Agreements and the United Kingdom

The Continuing Influence of European Union Law

Phillip Johnson

Examining how trade agreements are interpreted both in trade tribunals and in the United Kingdom, this innovative book provides a well-rounded exploration of the numerous UK free trade agreements, including the UK–EU Trade and Cooperation Agreement, and their legal and policy implications for intellectual property.
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Simeon Thornton, Chris Jenkins and Marie-Madeleine Husunu

Digital advertising, both display advertising and search advertising, represents a very important part of the overall advertising market in the United Kingdom. Google and Facebook have a high degree of market power in search and display advertising, respectively. On 1 July 2020, the Competition and Markets Authority published its Final Report on its market study into online platforms and digital advertising, in which it looked in some depth at digital advertising markets, assessing whether a lack of transparency, conflicts of interest, and the leveraging of market power undermine competition in digital advertising. This article examines the issues considered by, and the findings of, the CMA in its Market Study and set out in its Final Report, and describes the policy options identified in the Market Study for promoting competition and other policy goals, such as data protection and privacy and ensuring the viability of news publishers, in digital advertising markets.

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Jonathan Scott

The end of the Transition Period following the UK's exit from the European Union and COVID-19 are major catalysts for the Competition and Markets Authority's future work, including in the fields of merger control and antitrust enforcement. This article considers how these, and other events, will influence the CMA's work, including the establishment of the Digital Markets Unit and the Office for the Internal Market, enforcement priorities and international cooperation.

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Noel Beale and Paschalis Lois

The Trade and Cooperation Agreement broadly sets out the nature of the relationship contemplated between UK and EU competition law and policy following Brexit. The question is whether the UK will capitalize on its newfound discretion to deviate its competition policy from the EU in the future. This article considers some of the potential new directions that might be taken within the UK's competition law landscape, specifically in relation to merger control, antitrust and subsidy control. It explores some of the problems and opportunities created in the wake of Brexit, as well as the legal and practical ramifications of future divergences between UK and EU competition policy. Furthermore, it considers how the Competition and Markets Authority may fare in enforcing new policy, as well as its potential interactions with regimes both within and outside the EU.

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Andreea Antuca and Robin Noble

There has been a data revolution: the combination of sensors, processing power and mobile communications means that there is more of it, and it is having a greater impact on our lives than ever before. Across the world, there have recently been many new initiatives and legislative proposals for opening up access to some of that data. This is often driven by two different motivations: the desire to create new positive outcomes with existing resources, and the desire to correct negative impacts on competition in markets. To regulate data access properly, it is necessary to understand what makes data different and what its value is. If data access is going to be mandated, how can one value the data that a business holds, and set fair and reasonable charges for access to it? Economic tools that analyse the cost of creating the data, and the benefits derived from it, provide critical insight into this question.

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Kim Van der Borght, Jianmei Gao* and Xiaoting Song

To recognize an origin-linked production model and the typicity of the products, the European Union (EU) has introduced the Geographical Indication (GI) protection regime. By requiring that relevant production steps must take place in the defined locale, the regime confers exclusive production rights on the local producers. There are two GI categories in the EU. The first is Protected Designation of Origin (PDO), covering products with a qualitative link to both natural and human factors in the designated region. The second is Protected Geographical Indication (PGI), the scope of which overlaps with PDO and covers products that have a qualitative or reputational link with their regional origin. This article examines whether exclusive rights are necessary and appropriate to fulfil their objectives and argues that these rights, when extended to human factors and reputation, cannot always be justified. It is argued that the overlapping scope of the subject matter undermines the ability of these two GI protection categories to provide transparent and trustworthy information for consumers. Finally, this article proposes to redefine the scope of the subject matter and the protection level for PDO and PGI by approaching the product/origin link from a resource utilization, integration and sustainability perspective.

*Corresponding author: The research for this article was partially funded by Vrije Universiteit Brussel/China Scholarship Council Joint Scholarship and the National Social Science Fund of China (Grant No. 16 ZDA236).

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Nima Lorjé and Ariela Stoffer

Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.