Competition Law, Regulation and the Intangible Economy (LAWS0300)

The module illustrates the interaction of competition law and regulation with policy tools promoting innovation and a competitive economy, in particular competition law, technology regulation and intellectual property (IP) rights.

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Digital technologies and modular production methods have led to the emergence of a new generation of global leaders which cement their market position by orchestrating digital platforms and ecosystems of complementors, which offer them new ways to create and capture value that often transcend the boundaries of existing sectors. Dramatic shifts in market capitalization are testament to the huge promise of these ecosystem firms. Since 2016, the top five firms in the Western world in terms of market capitalization have all made aggressive use of platforms and ecosystems to dominate: Apple, Alphabet (Google), Microsoft, Amazon and Facebook. What is remarkable is not only that they have displaced the traditional leaders – oil giants, industrial conglomerates and banks – but also that they have cemented their relative positions, and grown so rapidly in both absolute and relative terms, with market capitalizations for all, enhanced as they were from COVID19, in excess of $1 Trillion. In China, Tencent, AliBaba and Baidu are equally dominant, while a host of new platform and ecosystem “unicorns” (i.e., worth $1bn+) have sprung up, their valuations ostensibly based on the promise of future customer and complementor lock-in and, as such, profits.

Their business models, built on intangibles such as software code and access to data, support expansion that is both breathtakingly rapid and effectively costless. With capital markets all too willing to invest in these firms’ growth, and regulators’ unable to rein them in, these firms have been able to accumulate unprecedented power and wealth, with profound implications for competition, the economy and society itself.  This course confronts the challenge of regulating platforms and ecosystems head-on, revisiting the economic, strategic and legal foundations that enable us to detect and redress issues of dominance and competition, and address questions of the appropriate conception of and limits of the law. The module explores the various ways in which the law (competition law, technology regulation, data protection/data access and IP rights) can work as a key instrument for innovation policy. This is the most dynamic and active area of economic regulation worldwide as this can be illustrated by the competition law cases brought against BigTech or Big Pharma firms on various jurisdictions, the development of new technological or legal protections for intangibles (expansion of IP rights, data protection and data harvesting, the challenges of the development of “surveillance capitalism”) and the emergence of new forms of regulation (e.g. the Digital Markets Act in the EU, the regulation of Big Tech in China, legislative developments in the US).

The course will focus on the approaches to take on tech M&A, the virtues and limits of self-regulation,  the potential for radical breakups of Big Tech, and the issues of data, when privacy protection and competition steer us in different directions. We will weigh up the case for regulatory intervention, the practical challenges involved and the future state that we hope such actions will bring about.

Our case studies will explore the law and legislative developments in the following jurisdictions: UK, EU, US, China and other BRICS countries.

The subjects covered include:

• Innovation policy and the interplay between competition law, data protection, access regulation, the Digital Markets Act, the Digital Services Act, the EU Data Act, the AI Act, and IP law

• The tension between sector-specific approaches and more horizontal approaches, in particular the interaction between horizontal and sector-specific approaches in specific sectors of the economy, such as the computing industry, pharma/healthcare, connected cars, the food industry

• Competition law and monopolistic practices involving IP rights or data

• Vertical integration and related licensing practices by IP holders and IP rights licensing

Module syllabus

Topics examined include:

• Introduction to the law and economics of competition law and regulation in the digital economy

• Monopolistic practices involving IP rights (including refusals to license or sell IP rights, product design, interoperability, tying, bundling, use and abuse of regulatory procedures, Excessive royalties/exploitative abuses

• Standard setting and competition law

• The Digital Markets Act and other initiatives to for the regulation of gatekeepers and digital ecosystems

• Interoperability regulations

• The intersection between data protection and competition law

Recommended reading

• Economides & Lianos, Giving Away Our Data for Free is a Market Failure, https://promarket.org/2021/02/01/free-data-market-failure-digital-platforms/

• Jacobides & Lianos, Rethinking Competition: From Market Failures to Ecosystem Failures, https://promarket.org/2021/04/12/competition-market-failure-digital-platforms-ecosystem-regulation/

• Lianos, Ioannis, Competition Law for the Digital Era: A Complex Systems’ Perspective (August 30, 2019). Available at SSRN: https://ssrn.com/abstract=3492730 or http://dx.doi.org/10.2139/ssrn.3492730

• Lianos, Ioannis and Ivanov, Alexey, Digital Era Competition BRICS Report (August 30, 2019). Available at SSRN: https://ssrn.com/abstract=3901413 or http://dx.doi.org/10.2139/ssrn.3901413

Module reading lists and other module materials will be provided via online module pages, once students have made their module selections upon enrolment.

Key information