Nicolo Zingales

Economic Analysis and Evaluation of 'Fair Prices' - Can Antitrust and International Taxation Learn from Each Other?

The purpose of this paper is to illustrate the different kinds of concerns related to the notion of “unfair prices” in tax and competition policy, respectively. The focus is on the rules governing transfer pricing within the setting of international tax policy, and on those governing the treatment of excessive as well as predatory pricing, according to competition policy.After a brief methodological background, the paper introduces the various notions of transfer, excessive and predatory pricing stressing the differences and similarities in the respective regulations. It does so distinguishing the rules established by the United States and the OECD, in the area of transfer pricing, and the different approach taken by the US and the EU, with respect to competition policy. Finally, the paper advances some tentative reflections on the possible scope for convergence between the three aforementioned areas of enquiry, elaborating some proposals from a policy making perspective.

Injunctive Relief in the EU – Intellectual Property and Competition Law at the Remedies Stage

In dealing with applications for injunctive relief by the holders of FRAND-encumbered SEPs in the course of protracted licensing negotiations, any legal system faces the challenge of reaching the proper balance between predictability for stakeholders and differentiation between possible scenarios (tough negotiations, holdup, holdout or exclusion). In the EU, that challenge fell to be addressed first under the various national laws concerning remedies for intellectual property violations, as partially harmonized by Directive 2004/48. The outcome was not optimal. After German courts introduced competition law in the equation in Orange Book, the European Commission felt compelled to intervene with a different approach in Motorola and Samsung, leading to a reference to the CJEU in Huawei v ZTE. That ruling sets out an elaborate choreography that SEP holder and implementer must respect, in order to avoid breaching Article 102 TFEU or avert injunctive relief, respectively. Huawei represents a satisfactory compromise in practice, but its theoretical foundation in competition law is not solid. Subsequent case-law has unmoored Huawei from competition law and is turning it into a stand-alone lex specialis for injunctions in FRAND cases. In the longer run, legislative intervention might be preferable to de facto harmonization via competition law.

Injunctive Relief in FRAND Disputes in the EU – Intellectual Property and Competition Law at the Remedies Stage

In dealing with applications for injunctive relief by the holders of FRAND-encumbered SEPs in the course of protracted licensing negotiations, any legal system faces the challenge of reaching the proper balance between predictability for stakeholders and differentiation between possible scenarios (tough negotiations, holdup, holdout or exclusion). In the EU, that challenge fell to be addressed first under the various national laws concerning remedies for intellectual property violations, as partially harmonized by Directive 2004/48. The outcome was not optimal. After German courts introduced competition law in the equation in Orange Book, the European Commission felt compelled to intervene with a different approach in Motorola and Samsung, leading to a reference to the CJEU in Huawei v ZTE. That ruling sets out an elaborate choreography that SEP holder and implementer must respect, in order to avoid breaching Article 102 TFEU or avert injunctive relief, respectively. Huawei represents a satisfactory compromise in practice, but its theoretical foundation in competition law is not solid. Subsequent case-law has unmoored Huawei from competition law and is turning it into a stand-alone lex specialis for injunctions in FRAND cases. In the longer run, legislative intervention might be preferable to de facto harmonization via competition law.

Book Proposal Digital Democracy in a Globalised World

PART I: INTRODUCING GLOBALISATION, LAW AND DIGITAL DEMOCRACY 1. Corien Prins, Setting the stage for analysing digital democracy through the lens of globalisation and global law 2. Maurice Adams, Democracy and the Democracy Debate: From City State to a Globalising Society? PART II: COUNTRY SPECIFIC INITIATIVES 3. Karsten Meijer, Dutch digital manifestations of representative and monitory democracy. 4. Koen van Aeken, Digital manifestations of representative and monitory democracy in Belgium. 5. Monica Steffen Guise Rosina and Alexandre Pacheco da Silva, Digital Democracy in Brazil: how open is the government to change? 6. Arpan Banerjee, Internet Censorship in India 7. Anne Meuwese, Popular Constitution-Making. The Case of Iceland. PART III: SPHERES, ACTORS AND REGULATORY INSTRUMENTS 8. Emre Bayamlioglu, A Critical Theory of Social Media As Public Sphere 9. Rivka Weill, Digital Democracy: Do We Want Electronic Elections and Are They Constitutional? 10. Marie-Jose Garot, European citizens‘ initiative 11. Nicolo Zingales & Roxana Radu, In search of the holy grail: democratic multistakeholder governance in internet policy-making 12. Stefan Soeparman, Civic driven open data initiatives: transparantizing the workings and performance of the State?13. Colette Cuijpers, Edemocracy; reconciling the interests of open data and data protection 14. Pedro Letai, Why can’t we be friends? Copyright and Freedom of Expression at the Crossroads of Digital Democracy PART IV: AN AGENDA FOR REFLECTIONS ON GLOBALIZATION, LAW AND DIGITAL DEMOCRACY

DRM Misuse: An Emerging Doctrine in Search for Principles

The advent of the digital age and the wide diffusion of copyrighted works over the Internet have brought about a drastic challenge to the pre-existing rules and legal standards governing the exchange of information. This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through a strategic use of Digital Rights Management (hereinafter, DRM). After a brief account of the qualities of these technologies and their contribution to the development of online markets for copyrighted works, the article warns against the common practice of using DRM as a tool to stretch the legal protection conferred by IP law.It surveys the approach taken by US courts in dealing with specific cases of abuse of DRM in the copyright context, advancing some considerations also on the pro-competitive benefit that may derive from these practices, and thus the different outcome that would result from an application of a purely antitrust-focused judicial scrutiny to the same situation. It then identifies some potential improvements of the current legal rules governing misuse of DRM, and recommends a two-fold approach to the assessment of the legality of such practices. In the final chapter, a legal test where antitrust analysis and IP principles are intermingled is proposed to facilitate this complex assessment.