The Authors' Take - Fighting the tech giants – news edition: Competition law’s (un)suitability to safeguard the press publishers’ right and the quest for a regulatory approach

Fighting the tech giants – news edition: Competition law’s (un)suitability to safeguard the press publishers’ right and the quest for a regulatory approach

by Tone Knapstad

As part of the ongoing debate on value-sharing for creators and users of online content, press publishers were granted a neighbouring right under EU copyright. This entailed an opportunity to obtain remuneration through licences for the use of online journalistic content by online aggregation services.

However, the right’s lack of efficiency became visible when press publishers in France, the first country to implement the right, attempted to enforce remuneration for Google’s use of snippets. Google demanded zero-remuneration licences or would abstain from using snippets from news webpages, which has proven to lead to decline in webpage traffic. Accordingly, the press publishers were still not seeing the promised remuneration. Since the strong market position of Google appeared to enable the ultimatum, the publishers claimed the behaviour infringed competition law, constituting an abuse of dominance.

This article argues that EU competition law cannot be relied on to ensure remuneration under the press publishers’ right. This argument is, firstly, based on an analysis concluding that practices similar to that of Google – forcing zero remuneration licences - do not constitute an abuse of dominance under Article 102 of the Treaty of the Functioning of the European Union. Secondly, the argument is founded on the conclusion that competition law, de lege ferenda, should not be applied for such purposes, as the goal of competition law does not warrant securing remuneration. Moreover, it is suggested that the fairness standard, which some argue is becoming a benchmark in EU competition law, is not a steering principle in itself, but rather that fairness is the result of correct competition law enforcement.

Lastly, the article maps the alternative regulatory approaches initiated in the EU (Digital Markets Act), Australia (Mandatory Bargaining Code) and the US. This is done to assess whether these solve the problem of press publisher remuneration and to explore the implications of regulation for competition law.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - The Commission’s vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – A critical primer

The Commission’s vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – A critical primer

by Matthias Leistner

In November and December 2020, the EU Commission has presented a triad of proposals concerning data governance, the regulation of gatekeepers in digital markets and the regulation of digital services (namely including an ambitious, yet considerate, reform of provider liability in Europe as well as the introduction of certain duties of diligence in particular for very large platforms). Specifically, this Digital Services Package respectively comprises a proposed Data Governance Act (DGA), Digital Markets Act (DMA) and Digital Services Act (DSA). Altogether, these bills represent the hitherto most ambitious and broad regulatory project in the field of data and digital services regulation worldwide.

While the (rather heterogeneous) DGA as well as the DSA will also have to be critically discussed in detail (and partly are in the paper), immediate attention has to be paid to the fundamentals of the DMA Proposal, namely, the necessary discussion of its legal basis, objective and context. To put it in a nutshell, the Proposal represents a hybrid approach to specific regulation of gatekeeper platforms, which comprises prominent elements of competition law as well as certain elements of unfair practices regulation and some other objectives (such as the efficient enforcement of certain rights relating to protection of personal data). Taken together, most of this makes perfect sense as a European Magna Carta for businesses’ and customers’ competitive freedoms vis-à-vis core platform intermediary and infrastructural services. Practically, in its current form, the proposal would effectively apply to the GAFAM-companies and a handful of further gatekeeper platforms.

However, notwithstanding the substantive competition law elements within this regulatory approach, the Proposal is only based on Art. 114 TFEU as an instrument of internal market harmonization. Against this background, presently, the main fundamental weakness of the Proposal concerns the integration in the context of or at least a more specific co-ordination with European and national competition law. This has practical consequences since sufficiently consistent and specific provisions on coordinating public enforcement of the Commission on the one hand and of the Member States’ authorities (in particular on the additional basis of competition law) on the other are lacking in the Proposal. In fact, this latter more practical aspect is partly linked to the former more fundamental aspect, since contextual integration in the realm of competition law (and consequently the use of Art. 103 TFEU as an additional basis for the Proposal) would allow to make use of the European Competition Network under Regulation 1/2003 for the public enforcement of the DMA Proposal’s provisions in order to efficiently coordinate EU and national enforcement, based on both, the DMA Proposal and EU or national competition law. Apart from that, a European legal framework for private remedies and enforcement in regard to the obligations laid down in the Proposal seems of paramount importance, since otherwise there is a considerable danger of disharmonization and inefficiency in regard to diverse or lacking private remedies according to the different Member States’ respective national contract, tort and unfair competition laws.

Make no mistake: The Magna Carta in many ways was a document of the weakness of King John of England in enforcement of his power against the rebel barons. Issues of public and private enforcement will also be the crucial tie-breakers for making the DMA Proposal a future success in practice – thus they should be addressed comprehensively from the start.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]