The field of artificial intelligence or ‘AI’ has been reshaping virtually every industry built on the idea that machines could be used to simulate human intelligence through so-called ‘machine learning’. Antitrust interest in this topic has been generated among regulators, policy-makers, academics and business in the EU and internationally. This article explores the extent to which AI may raise competition or other concerns for consumer welfare and whether existing legal and policy instruments are appropriate to deal with the emerging opportunities and challenges.
Browse by title
Andreas Lober and Timo Conraths
This article considers the legal issues surrounding the use of cheat software in online games, especially with reference to those games featuring significant online multiplayer functionality, such as massively multiplayer online games. Given the propensity of cheat software to ruin the gaming experience of bona fide players in such multiplayer settings, potentially resulting in significant economic and reputational losses for game publishers, the article evaluates the methods which may be employed by the game publisher to restrict the development, distribution and use of cheat software by the latter's developers, publishers and users. Using provisions of trademark, copyright and competition law, the authors examine the tools available to game publishers to stifle the spread of cheat software and maintain a fair playing field within their online multiplayer games.
The Competition and Markets Authority has recently opened an expanded office in Edinburgh. This article reviews the history of the enforcement of competition law (whether in antitrust, markets or merger control) by the CMA and its predecessors and in the Competition Appeal Tribunal and the Scottish courts. With Brexit, calls for increased devolution in competition law and a possible second referendum on Scottish independence, there will be further changes in the enforcement of competition law in Scotland, with the future likely to see more, rather than less, competition law enforcement there than has been the case to date.
Scott M. Kelly and Alex Nealon
A June 2019 appellate decision marked the end of the patent assertion by Game and Technology Co. (GAT) against Activision Blizzard and Riot Games.1 The patents at issue related to equipping virtual avatars with game items. Activision Blizzard was able to successfully invalidate the patent through inter partes review (IPR) proceedings at the US Patent and Trademark Office. This case illustrates the important role that IPRs play in US patent litigation, as well as the double-edged sword of obtaining very broad patent claims. The article walks through the history of the assertion, the invalidity arguments at the USPTO, and the final decision on appeal to the Federal Circuit, and discusses how IPRs may provide an effective response to patent assertions in the US.
Stephen Whitfield, Richard J. Brown and Ingrid Rogers
There has been an increased focus of the European Commission and numerous national competition authorities on data-related mergers, which also fits more generally in the context of a broader global competition law focus on the ‘FAANGs’ (i.e., Facebook, Apple, Amazon, Netflix and Google) and the wider tech sector. This article considers the impact of data on EU merger control and explores the theories of harm and legal frameworks which have been applied and developed in considering data-related competition concerns, in particular the notable developments in the Commission's recent consideration of Apple's acquisition of Shazam. The article considers that the impact of these developments is that data-related mergers should no longer be assessed by reference to traditional economic indicators such as market shares and concentration levels only, but rather also in the context of the broader global competition law focus on big tech.
Stephen Smith and Matthew Hunt
In PayPal/iZettle the CMA has, for the first time in a Phase II investigation, directly considered the issue of ‘killer acquisitions’. It assessed whether PayPal's acquisition of iZettle might have been motivated by an intention to prevent future competition from an emerging rival. This article first explores the wider concerns surrounding killer acquisitions, putting the PayPal/iZettle decision in context. It explains the difficulties that some countries face in ensuring that high value acquisitions of innovative start-ups with low revenues are still subject to regulatory control, and the steps that countries like Germany and Austria have taken to resolve this. It then analyses the CMA's decision, highlighting the importance that the CMA placed on the parties’ internal documents for determining the rationale for the transaction and the justification for the amount paid. The article concludes by noting that potential killer acquisitions are likely to remain on the radar of competition regulators (in Europe and the UK) for some time to come.
Pascale Déchamps, Ambroise Descamps, Francesca Arduini, Célia Baye and Lola Damstra
A recent topic of debate among economists and policymakers is whether labour markets should be of interest to competition authorities. High-profile cases involving non-poaching agreements have recently made the headlines in the USA, and labour markets were a key aspect of criticisms aimed at recent merger decisions in Europe. In parallel, academic research has provided new findings to fuel this debate. In this article, we shed light on the key elements of this discussion and explain how economic analysis can contribute to it.
Regulating a population is difficult, and no easier when that population has grenade launchers. Video game publishers and developers face the unenviable challenge of balancing their game's playability with regulating the individuals within it. This is done proactively (by game design) and reactively (by punishing or rewarding player behaviour). What players encounter affects the game's age rating, but also the player's desire to continue playing. Even games focusing on violence impose taboos on unsportsmanlike behaviour, and real-world referential behaviour or attacks. Games can become known for their toxic player behaviour, rather than the gameplay itself. In examining pro and reactive regulation in online multiplayer games, such as type of communication and moderation, there appears to be a correlation between highly proactive in-game regulation and low age ratings, and highly reactive in-game regulation and high age ratings. While further study is needed, this suggests potential avenues for future regulatory efforts.
Anthony Michael Catton
This article, the first of two parts, assesses the questions of copyright and originality in player made ‘in-game creations’ – player creations which are made incidental to and specifically within the context of playing video games. The article suggests three classifications of in-game creations and respectively discusses the potential protection available under British copyright. It examines whether these creations are capable of satisfying the originality standard required for copyright and it further considers when and why in the case of flexible template games and blank template games in-game creations are capable if not in some cases likely to demonstrate sufficient originality for the purposes of copyright.
Philip Andrews and Niall Fitzgerald
Three Phase 2 merger reviews recently completed by Ireland's competition authority, the Competition and Consumer Protection Commission (‘CCPC’) shed some light on its Phase 2 merger review procedures. All three mergers were cleared subject to conditions and the remedies involved (in one case a structural remedy involving a business divestment, in another a quasi-structural remedy involving customer contract sales, and in the third case purely behavioural ring-fencing commitments) clarify the CCPC's practice on merger remedies. This article reviews the three determinations primarily from a procedural perspective, but also describes the remedies accepted by the CCPC in each case.