‘Big data’ and ‘big tech’ have become central topics in recent antitrust debate and regulation. For example, the Competition and Markets Authority (CMA) recently published a report on online platforms, expressing concerns that the major platforms like Google are now protected from competition by such strong incumbency advantages. Underlying the CMA's theory of harm is the essential facility theory of antitrust, under which Google's ability to control access to its click-and-query data is seen as preventing its rivals from competing effectively. EU jurisprudence has identified three criteria to determine whether data are an essential facility and whether access should be mandated. First, the data must be indispensable to compete in the market. Secondly, absent data sharing, technical improvements by competitors must be hampered or precluded. Thirdly, there must be no objective justification to refuse competitors access to the data. It is difficult to reconcile the authorities’ concerns with Google's click-and-query data with these criteria, however. Actual and potential alternatives exist; Google's competitors have been innovating in the search market for more than a decade; and there are objective reasons to limit data access, including threats to innovation and privacy concerns.
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Nick Dadson, Iain Snoddy and Joshua White
Ambroise Descamps, Timo Klein and Gareth Shier
In the modern economy, algorithms influence many aspects of our lives, from how much we pay for groceries and what adverts we see, to the decisions taken by health professionals. As is true with all new technologies, algorithms bring new economic opportunities and make our lives easier, but they also bring new challenges. Indeed, many competition authorities have voiced their concerns that under certain circumstances algorithms may harm consumers, lead to exclusion of some competitors and may even enable firms (knowingly or otherwise) to avoid competitive pressure and collude. In this article, we explain how algorithms work and what potential benefits and harms they bring to competition.
Ina Esser, Chris Whitcombe and Robert Ryan
Economics plays a central role in effective merger enforcement, as it provides the conceptual framework to assess merger effects. Additionally, effective merger enforcement relies on the merger assessment being firmly rooted in evidence. Economic analysis is often key in interpreting this evidence. This article discusses the role of economists and economic analysis in merger investigations by the Competition and Markets Authority, in particular in relation to the approach to economic analysis and evidence gathering, and the wider contribution of economists at the CMA in developing the toolkit used for assessing mergers.
Gavin Bushell and Emma Whyte
Since 1 January 2021, the ‘one-stop shop’ principle under the EU Merger Regulation (EUMR) no longer applies to the UK, and UK turnover is no longer relevant for determining whether a merger satisfies the EUMR jurisdictional thresholds. Merger control analysis will now need to factor in possible interactions with both the European Commission (Commission) and the Competition and Markets Authority (CMA). The two regimes have different procedures, timelines and substantive tests, which will impact on deal planning and strategy. Dual reviews by both authorities will likely lead to an additional burden on merging parties as well as a risk of a deal being cleared by the Commission but blocked by the CMA, or vice-versa. This article assesses the procedural and practical implications of these changes and highlights some of the key risks businesses may face in merger control looking ahead.
Nicholas Levy, John Messent, Edward Dean and Chloe Hassard
On 11 November 2020, the UK Government published the National Security and Investment Bill (NSI Bill), which, if approved by Parliament, would allow the Secretary of State for Business, Energy and Industrial Strategy (Secretary of State) to screen and prohibit ‘potentially hostile’ investments that threatened UK national security.
The proposed system would represent the most significant change in the UK regulatory environment since the Government ceded the power to approve or prohibit mergers on competition grounds to an independent agency in 2002. The envisaged regime would be among the most wide-ranging and onerous in the world, adding a new layer of mandatory review and imposing non-trivial costs on investments in any company with UK activity.
This article describes the UK's existing public interest intervention regime, explains the background to the Government's proposed new regime, including similar initiatives elsewhere in the world, summarizes the principal features of the proposed new UK regime, and considers its potential implications for investments in the UK.
The term ‘distinctiveness’ is used in trademark law to refer to the capacity of a trademark to distinguish the goods of one undertaking from those of other undertakings. The importance of this concept can be seen in Article 15 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides that any sign having distinctiveness shall be capable of constituting a trademark. Gradually, ‘distinctiveness’ has come to be used to describe the distinguishing capacity of other distinctive signs, including geographical indications (GIs). This article explores the distinctiveness of GIs. It begins with a discussion of the meaning of GI distinctiveness in the different GI protection contexts to reveal its particularity compared to the traditional concept of trademark distinctiveness. The second part of the discussion shows, however, that the concept of GI distinctiveness is not given sufficient importance in the protection of GIs, and is confused with the distinctiveness of collective or certification marks. This article therefore calls for an approach that recognizes the importance and the particularity of the distinctiveness of GIs in the design of GI protection mechanisms.
Geographical indications have played a central role in the protection of handicrafts, and agricultural and manufactured goods in India. Numerous goods are already registered as geographical indications and many more are in the pipeline to be registered. This article analyses the products which have been registered so far and finds that there are certain issues raised by Indian GI protection, to which it puts forward various solutions.
Michael Blakeney and Getachew Mengistie
This article examines continental, sub-regional and national initiatives in the formulation of intellectual property policy Africa. The article is divided into seven parts. The first looks at the relationship between IP and economic development. The second part examines the role of IP regional integration and trade. The third part looks at African regional trade agreements. Next, the article surveys the activities of sub-regional IP systems in Africa: the African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété (OAPI). The fifth part looks at the recent formation of the Pan African Intellectual Property Organization (PAIPO) and its relationship with ARIPO and OAPI. The sixth part gives a brief overview of the efforts made in designing national IP polices. The concluding section summarizes the IP policy-making process in Africa.