Mariateresa Maggiolino

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.

The regulatory breakthrough of competition law: definitions and worries

Today, many antitrust scholars note the great change that competition law is undergoing. Some criticize the law’s resemblance to economic regulation; others register with alarm its new regulatory nature.1 Yet, there is room to argue that the terms ‘competition law’ and ‘economic regulation’ are simple labels that relate to wavering ideals and a dynamic maze of diverse and overlapping phenomena (Section 2). Thus, to maintain that current competition law is taking the shape of a piece of economic regulation and support criticism of this transformation, we should address at least three questions. We should: (i) refer to some specific forms of economic regulation and competition law, so as to identify the many contours along which they can overlap or differentiate (Section 3); (ii) verify whether and how this multi-dimensional metamorphosis is taking hold in competition law (Section 4); and (iii) indicate what competition law loses – or is assumed to lose – because of the regulatory makeover it is purportedly undergoing (Section 5). The chapter intends to accomplish these three goals without neglecting some critical thoughts about the idea that, unlike economic regulation, competition law is (or could be) a matter of pure (economic) technique, totally detached from value choices and political decisions (Section 6).

Plausibility, Facts and Economics in Antitrust Law

According to EU competition law, the existence of an anticompetitive agreement can be inferred from a number of coincidences and indicia only in the absence of another plausible explanation of the facts at stake. According to U.S. federal law (antitrust law included), only a complaint that states a plausible claim for relief can survive a motion to dismiss at the pleading stage. What is plausible, however? After explaining the relationship between facts and evidence law, this chapter analyses the general meaning of the notion of plausibility, discusses the degree of discretion that it introduces, how it affects the justifications that judges and fact-finders make for their choices, and remarks on how this concept relates to substantial accuracy. On the other hand, the chapter acknowledges that antitrust law, by relating our understanding of what is plausible to economic models, debunks these concerns and raises another issue. Namely, since economics is rooted in various axioms and value-choices, the antirust link between plausibility, evidence standards and economics grants to these axioms and value-choices the possibility of affecting even antitrust decisions about facts, even though these decisions should amount to pure descriptions of the concrete facts.

Should We Believe in the Reassuring Nature of the Chicagoan Notion of Competition Law

If we wonder about the reasons why current antitrust scholars would like to resist the new regulatory approach to competition law, two lines of arguments arise – that concerning the risk of making mistakes because of enforcers’ ignorance, and that concerning the risk of making mistakes because of enforcers’ permeability to values and political ideas. Limiting enforcers’ ignorance is always appreaciable, especially because – in the end – this limitation amounts to the request of a good division of work between antitrust enforcers and regulators. Differently, the ease with which Chicagoan antitrust law is deemed to be neutral and, hence, preferable to any form of regulation is questionable. Chicagoan antitrust law is technical in its operations, but not in its premises and results and this, I believe, should be taken into account anytime we choose whether to like or dislike the emerging regulatory approach towards competition law.

Social Justice, Innovation and Antitrust Law

Intellectual Property Law examines emerging intellectual property (IP) issues through the bifocal lens of both economic analysis and individual or social justice theories. This study considers restraints on IP rights both internal and external to IP law and explores rights disequilibria from the perspective of both the rationale of IP law and the interface with competition law. The expert contributors discuss the phenomenon in various contexts of patent, trade secret; and copyright, each a tool to incentivize the growth of knowledge beyond innovation and creativity.