Giuseppe Colangelo

Big Data as Misleading Facilities

ABSTRACT The notion of big data is misleading twice over. Firstly, it suggests that big data are a homogeneous resource whose features are given and whose applications are known in advance, when they are nothing of the kind. Secondly, it draws attention towards a step of the data value chain, data collection, that is far less important than those of data processing and information production. The paper achieves the latter conclusion by showing that big data hardly meet the conditions of the European essential facility doctrine and do not lend themselves to be shared via viable compulsory licenses.

ISPs’ copyright liability in the EU digital single market strategy

The EU Commission is eager to reform the current rules governing Internet Service Providers’ copyright liability. According to the Commission, online services providing access to copyright protected content uploaded by their users without the involvement of right holders have become main sources of access to content online. This affects right holders’ possibilities to determine whether, and under which conditions, their works and other subject-matters are used as well as their possibilities to get an appropriate remuneration for them (value gap). In order to close the reported value gap between right holders and online platforms, the Proposal for a Directive on copyright within the Digital Single Market strategy endorses a wider definition of the communication to the public and imposes new control obligations on ISPs. Such a policy choice raises some concerns. First, it is doubtful whether the Proposal is consistent with both the interpretation of the notion of communication to the public provided by the European Court of Justice case law and the safe harbor granted by the E-Commerce Directive. Moreover, the Proposal is not supported by any empirical evidence. The lack of robust statistical evidence of displacement of sales by online copyright infringements undermines the ratio of the intervention, that is, the reported value gap and the consequent need to assure the right holders of an adequate remuneration for the circulation of works on the Internet.

Selective Distribution and Online Marketplace Restrictions under EU Competition Rules after Coty Prestige

ABSTRACT Given the impressive growth of Internet shopping, one may wonder how the antitrust rules on selective distribution systems might fit in the context of online sales. Indeed, the online sales phenomenon has attracted significant attention in recent years in several Member States, mainly by the question on the extent to which restrictions limiting the ability of retailers to sell via online marketplaces are compatible with competition rules. No wonder the Coty Prestige judgment is so much-awaited. The ruling is expected to shape the future of EU e-commerce affecting online markets, the luxury industry and Internet platforms.

Intellectual property, standards, and antitrust: a new life for the essential facilities doctrine? Some insights from the Chinese regulation

It is still controversial whether the intellectual property-antitrust interface should be viewed as a conflict or a finalistic convergence. The recent Chinese Regulation on the “Prohibition of Conduct Eliminating or Restricting Competition by Abusing Intellectual Property Rights�? provides the opportunity to update the analysis of this real (or apparent) conflict.

Law versus technology: looking for a solution to the orphan works’ problem

The aim of this article is to analyse the different regulatory and practical solutions proposed both in US and EU scenarios to overcome the orphan works’ issue. Orphan works pose a problem because users, who are legally obliged to obtain prior authorization for making works available to the public, are unable to locate and contact the relevant rightsholders. The size of the problem, in terms of the number of works considered orphans or the value of those works, even if difficult to state with precision, is known to be significant.

Di regolazione, antitrust e diritti di proprietà intellettuale

The growing importance of intangible property and the development of new technologies come together with the current trend of covering by IPRs an increasingly broader area of resources. Heller showed up that the transition from commons to privatization generates a situation in which too many property rights are owned by too many parties, a spiral of overlapping IPRs in the hands of different owners, with the consequence to obstacle future innovation. The need to coordinate various owners, overcoming transaction costs, strategic behaviours and cognitive biases, supports the rising diffusion of collective rights organizations, a myriad of formal and informal institutions designed to regularize technology transactions and break relational bottlenecks: they include the patent pooling, that is the arrangement among multiple patent holders to aggregate their patents making them available to each member. Antitrust authorities have come closer to a rule of reason analysis towards patent pools, namely a balanced approach able to weigh procompetitive benefits and anticompetitive effects: even if pooling may enhance static and dynamic efficiency by integrating complementary technologies, reducing transaction costs, clearing blocking positions and avoiding costly infringement litigation, at the same time it may be a way to conspire to suppress competition.