Private damage claims that follow after a competition authority's infringement decision require an accurate estimation of the harm caused, in order to avoid under- or over-compensation. The right method for valuation of damage will depend on the specifics of a particular case, and will need to balance the need to allow for a sufficient level of detail, while remaining tractable and practical for the case overall. Regression analysis is often the method that best balances these competing objectives. This article discusses the increasing use of regression analysis in follow-on damage claims in Europe. It outlines possible reasons why this widespread application of regression analysis is not yet extensively reflected in final judgments by national courts, and considers how this may change in the future. It concludes that the regression analysis is here to stay.
Spyros Droukopoulos, Barbara Veronese and Stefan Witte
Joe Williams and Stephen Wisking
Loss of potential, rather than actual, competition as a theory of harm in merger control has been a hot topic in competition policy debate. The UK's Competition and Markets Authority (CMA) does not face the same jurisdictional constraints that have prevented some of its peer agencies from investigating transactions which give rise to loss of potential competition concerns, and it has adopted a number of recent merger decisions in this area, in many cases after the conclusion of a detailed Phase 2 review. This article outlines the applicable legal framework and explores the CMA's recent decisional practice by reference to three categories of transaction potentially giving rise to a loss of potential competition where the concern is that absent the transaction: (1) one party would have been a market entrant; (2) one or both parties would have become a greater competitive constraint on the other; and/or (3) there was an alternative purchaser which would have made the target more competitive. It then summarizes the CMA's approach to assessing such transactions, including its intention, ability and incentive framework. It concludes by setting out the case for revision to the CMA's Merger Assessment Guidelines to reflect explicitly its approach to these types of transactions.
Paul K. Gorecki
In a 2019 article in the Competition Law Journal Andrews and Fitzgerald argue that the decisional practice of the Competition and Consumer Protection Commission (CCPC), Ireland's competition agency, in clearing three Phase II mergers, demonstrates an ‘openness to resolving identified competition issues via remedy packages even in highly complex [merger] cases’. However, from a competition economics perspective, based on an examination of one these three cases, the Berendsen (Elis)/Kings Laundry transaction, the remedy package does not mitigate the competition concerns identified by the CCPC. Indeed, the remedy is likely to exacerbate these concerns. The merger should have been prohibited. This article suggests two ways in which the CCPC's merger procedures can be revised so as to ensure greater congruency between the procedural and competition economics perspectives.
Simon Pritchard and Verity Egerton-Doyle
The Enterprise Act 2002 affords the Competition and Markets Authority substantial power to review – and intervene – in mergers it considers may give rise to competition concerns. The CMA's jurisdiction is among the broadest of competition agencies globally, in both the kinds of transactions it can capture, and also in the (limited) nexus it requires to the UK. This article gives an overview of the jurisdictional framework within which the CMA operates, and examines three recent cases: Sabre/Farelogix, Roche/Spark and MasterCard/Nets, each with limited UK nexus, in which the CMA has been particularly bold in stretching the limits of its elastic jurisdiction. The authors argue that these cases – and any assessment of the potential for CMA intervention in future mergers – must be understood in the context of the policy debate around historical under-enforcement of mergers, especially in digital and other innovative sectors.
Joe Cannataci, Valeria Falce and Oreste Pollicino
Edited by Joe Cannataci, Valeria Falce and Oreste Pollicino
This article examines and critiques the American copyright regime's increasingly protective approach to video games and their subject matter. Over the past decade, a trio of district court decisions have bolstered protection for video games by relaxing standards for protectability and substantial similarity. Subsequent rulings, concerning both games and other forms of intellectual property, suggest this protective streak will continue. While heightened protection might provide a necessary deterrent to ‘cloning’ and other kinds of impermissible copying, it will also endanger valuable forms of appropriation. After decades of limited copyright involvement, mimesis has become an important element of game creation – widely tolerated by the gaming community as a source of inspiration, interoperability, and cultural conversation. A more expansive view of protectability may inhibit imitative behavior that has, in the past, benefited new creators and fans without harming the economic expectations of prior authors. Moreover, that new approach, which relies heavily on juries for unpredictable, case-by-case determinations, may restrict the financial and creative outlook of the video game industry at large.
In its first section, this article identifies the elements of video games that have been deemed protectable under copyright law. The second section summarizes foundational video game case law, in which courts established restrictive standards for protectability and substantial similarity. The third then discusses the paradigm shift towards more expansive protectability, recounting cases where courts found games worthy of heightened protection. In its fourth section, this article argues that the protective trend has yet to peak, looking to evidence gleaned from recent copyright suits. A concluding section outlines the risks of overprotection, cautioning against a potentially unreasoned and impractical copyright standard.
Advertising on the Internet showed fascinating results in Russia in 2019 – according to the statistics of the Association of Communication Agencies of Russia (ACAR), the Internet was the only growing platform of advertising distribution, while such channels as TV, radio and printed media shortened their advertising profits. Along with growth of the online advertising market the interest and attention to legal aspects of digital advertising is increasing. Cases on digital advertising are always creative just like advertising itself is. The main challenges relate to the application of regular requirements of the advertising law, which are already well understood in the TV or radio business, to the Internet. While doing this, we in Russia also take into account international experience and trends in the field of digital advertising and try to predict further development of legal landscape and practice.
Children spend a tremendous number of hours online these days watching kids their age play video games on YouTube. The videos of these young stars, also called ‘kidfluencers’, have become an essential avenue for marketers to advertise games and merchandise. However, the game promotions of these kidfluencers can easily deceive children, as the paid collaboration with companies is not always properly disclosed. Therefore, this article aims to investigate if the European advertising regulations sufficiently protect children against misleading promotions in the videos of kidfluencers. It starts by analysing the effectiveness of kidfluencer marketing and its applicable European advertising legislation. After this analysis, it shows that the current regulations of kidfluencer marketing require a European approach that harmonizes the use of advertising disclosures and YouTube's responsibility regarding commercial communication.
Copyright protection is often unavailable for many game elements due to the dynamic nature of games where single still frames are automatically generated and consequently proving originality and copying can be challenging. Registered designs help fill this gap and are a powerful, but underused, weapon. This article explain how designs can be used by gaming companies and the issues that need to be considered before starting a filing programme and the impact of Brexit on everything – to the extent that this can be known in mid-2020.