Jörg Hoffmann

Doktorand und wissenschaftlicher Mitarbeiter

Immaterialgüter- und Wettbewerbsrecht

+49 89 24246-594
Kontakt

Arbeitsbereiche:

Kartellrecht, Immaterialgüterrecht, Law and Economics, Regulierung der datengetriebenen Wirtschaft (Datenzugang, AI, FinTech)

Wissenschaftlicher Werdegang

seit 2018
Wissenschaftlicher Mitarbeiter am Max-Planck-Institut für Innovation und Wettbewerb

Promotion an der Ludwig-Maximilians-Universität München (LMU) bei Prof. Dr. Josef Drexl LL.M. (Berkley)
Thema: Datenzugangsregulierung

2017
Abschluss: Zweites juristisches Staatsexamen 

2014 - 2017
Juristischer Vorbereitungsdienst im OLG Bezirk Hamburg mit Stationen u.a. bei der Europäischen Kommission, Brüssel, (DG GROW), der Ständigen Vertretung Deutschlands bei den Vereinten Nationen, New York und der Anwaltssozietät CMS Hasche Sigle, Hamburg (Kartellrecht) 

2014
Abschluss: Erstes juristisches Staatsexamen
München

Studium der Rechtswissenschaften
Ludwig-Maximilians-Universität München (LMU), UCL (London) 

Berufserfahrung

2017
Anwaltssozietät Hogan Lovells LLP
Frankfurt (EU Regulatory, FinTech)

2010 - 2015
Wissenschaftlicher Mitarbeiter inter alia in der Anwaltssozietät Taylor Wessing
Hamburg, Milbank, Tweed, Hadley and McCloy LLP München, Universidad Autonoma Metropolitana Mexiko Stadt, Max-Planck-Institut für Innovation und Wettbewerb München

Publikationen

Forschungspapiere

Sector-Specific (Data-) Access Regimes of Competitors (Max Planck Institute for Innovation & Competition Research Paper, No. 20-08), 2020, 50 S.

  • The expected economic and social benefits of data access and sharing are enormous. And yet, particularly in the B2B context, data sharing of privately held data between companies has not taken off at efficient scale. This already led to the adoption of sector specific data governance and access regimes. Two of these regimes are enshrined in the PSD2 that introduced an access to account and a data portability rule for specific account information for third party payment providers. This paper analyses these sector-specific access and portability regimes and identifies regulatory shortcomings that should be addressed and can serve as further guidance for further data access regulation. It first develops regulatory guidelines that build around the multiple regulatory dimensions of data and the potential adverse effects that may be created by too broad data access regimes. In this regard the paper assesses the role of factual data exclusivity for data driven innovation incentives for undertakings, the role of industrial policy driven market regulation within the principle of a free market economy, the impact of data sharing on consumer sovereignty and choice, and ultimately data induced-distortions of competition. It develops the findings by taking recourse to basic IP and information economics and the EU competition law case law pertaining refusal to supply cases, the rise of ‘surveillance capitalism’ and to current competition policy considerations with regard to the envisioned preventive competition control regime tackling data rich ‘undertakings of paramount importance for competition across markets’ in Germany. This is then followed by an analysis of the PSD2 access and portability regimes in light of the regulatory principles.
  • Available at SSRN

Intellectual Property Justification for Artificial Intelligence (Max Planck Institute for Innovation & Competition Research Paper, No. 20-02), 2020, 29 S. (gemeinsam mit Reto M. Hilty, Stefan Scheuerer).

  • Against the backdrop of the current discussion of how AI reshapes certain IP paradigms, this chapter reassesses the need for IP protection in AI markets per se. We assess the question of justification of IP rights for both AI as a tool and AI-generated output in light of the very theoretical foundations of IP protection (from both legal embedded deontological and utilitarian economic standpoints). Traditionally, IP is granted due to deontological reasoning according to which a human creator’s efforts and personality have to be awarded and protected, and economic reasoning, according to which exclusive rights in intangible goods have to be established in order to remedy market failure in public goods markets. IP ought to serve as a regulatory system of stimulation of creation and innovation using market forces to achieve this goal. Based on the current state of knowledge however, it seems that specific market implications of the widespread use of most AI applications may have altered the justification for AI-related IP protection in certain cases. Whereas this seems particularly true regarding AI tools, the case for AI outputs may be different.
  • Available at SSRN

Technical Aspects of Artificial Intelligence: An Understanding from an Intellectual Property Law Perspective (Max Planck Institute for Innovation & Competition Research Paper, No. 19-13), 2019, 15 S. (gemeinsam mit Josef Drexl et al.).

  • The present Q&A paper aims at providing an overview of artificial intelligence with a special focus on machine learning as a currently predominant subfield thereof. Machine learning-based applications have been discussed intensely in legal scholarship, including in the field of intellectual property law, while many technical aspects remain ambiguous and often cause confusion. This text was drafted by the Research Group on the Regulation of the Digital Economy of the Max Planck Institute for Innovation and Competition in the pursuit of understanding the fundamental characteristics of artificial intelligence, and machine learning in particular, that could potentially have an impact on intellectual property law. As a background paper, it provides the technological basis for the Group’s ongoing research relating thereto. The current version summarises insights gained from background literature research, interviews with practitioners and a workshop conducted in June 2019 in which experts in the field of artificial intelligence participated.
  • Available at SSRN

EU-Merger Control in Big Data-Related Mergers (Max Planck Institute for Innovation & Competition Research Paper, No. 19-05), 2019, 74 S. (gemeinsam mit Germán Oscar Johannsen).

  • The main focus of the Commission’s last decade decisional practice in big data mergers has been on identifying possible harming effects of the control over exclusive information (absolute foreclosure scenario). Thereby it has centred its analysis on the assessment of the overall availability of data post-merger and thus mostly found no concerns due to the ubiquity and non-rivalrous nature of data. However these considerations were too short-sighted as additional competition concerns may arise when the accumulation of large piles of data from a huge multitude of sources by digital conglomerates leads to such an advantage that competitors will not be able to match anymore, increasing the likelihood of further anti-competitive strategies (relative foreclosure scenario). Accordingly, the paper firstly addresses the need for information centric reference points for the analysis of data induced significant impediments of competition (SIEC). It then analyses the approach taken by the Commission so far, identifies the shortcomings and establishes a theory of harm that takes the efficiency offense doctrine and the financial power and portfolio effect theories of harm as a reference point and relate it to a relative foreclosure strategy of the merged group that is specific to data induced SIEC. The distinction of these two foreclosure scenario levels serves as the basis for further discussion on adequate remedies to tackle the two types of data-induced harming effects. The paper then indulges into the intersection of competition law and data protection law and analyses the potential need for a distinction between personal and non-personal data due to the fact that data protection law might be considered a normative factual remedy that renders personal data specific competition concerns post-merger unnecessary. This is then followed by a parallel analysis related to ex-ante data access regimes being normative factual remedies, e.g. the access to account rule under the Payment Services Directive 2 (PSD2). It then stresses the need for considering formal elements such as conditional remedies that tackle potential issues of a lack of foreseeability due to high market dynamics before examining the efficiency and feasibility of a data sharing commitment for both absolute and relative foreclosure scenarios. As essential facility considerations cannot be analogously applied in relative foreclosure cases we take recourse to criteria that were established for measuring conglomerate power structures. Accordingly in relative foreclosure scenario cases we establish two requirements that need to be fulfilled by the undertaking seeking access to data in order to confine a potential erga omnes right and make data sharing legally obtainable.
  • Available at SSRN

Digital Markets, Mobile Payments Systems and Development – Competition Policy Implications in Developing Countries in Light of the EU Experience (Max Planck Institute for Innovation & Competition Research Paper, No. 18-13), 2018, 43 S. (gemeinsam mit Mor Bakhoum, Francisco Beneke).

  • The digitization of economic activity has important socio-economic development implications and at the same time creates challenges for antitrust analysis. These implications and challenges have been met differently in jurisdictions around the world. In this paper we analyze the different experiences in the EU and developing countries, focusing on mobile payments. We find that this market exhibits special characteristics that need to be taken into account in the analysis of competition conditions. First, it is enabled by mobile telecommunications infrastructure and is offered by network operators, which causes competition in both markets to be closely linked. Second, there are factors, such as the lack of interoperability and geographical reach, that make network effects in this industry different from those present in other platforms. Third, since mobile payments in developing countries serve a niche—the population underserved by mainstream banking—the definition of the relevant market is not straightforward. We propose the criteria to be applied when making such definition. Finally, since mobile payments have associated financial services, there is an interaction between competition and financial stability that needs to be considered.
  • Available at SSRN

Stellungnahmen

Comments of the Max Planck Institute for Innovation and Competition of 11 February 2020 on the Draft Issues Paper of the World Intellectual Property Organization on Intellectual Property Policy and Artificial Intelligence, 2020, 9 S. (gemeinsam mit Josef Drexl et al.).

Andere Veröffentlichungen, Presseartikel, Interviews

German Legislators Dismiss E-Money Concerns Over 4th AMLD - Interview, Payments Compliance, Compliance Online 2017 24.05.2017.

    Mitgliedschaften

    Deutsche Vereinigung für gewerblichen Rechtsschutz (GRUR)

    Deutsche Gesellschaft der Vereinten Nationen e.V. (DGVN)

    UCL Alumni, London, UK (aoc.ucl.ac.uk/alumni)

    Open Data Institute, London, UK (theodi.org)

    Phi Delta Phi Hans-Jürgen Papier Inn e.V. (http://phideltaphi-muenchen.de)

    Vorträge

    13.12.19

    Sektor-spezifische Zugangsregime von Wettbewerbern
    Bundesjustizministerium - Verbraucherrechtstage 2019
    Ort: Berlin

    28.11.19

    AI and IP- Intellectual Property Justification in the Realm of AI
    CUHK,
    SMU Singapore, MPI for Innovation and Competition - Conference on AI and IP
    Ort: Singapur

    27.06.19 

    Big Data and Merger Control - an Appraisal of Data Specific Theories of Harm and Remedies
    Univsersité Aix/Marseille - 14th Annual Conference of ASCOLA
    Ort: Aix en Provence

    07/18

    Digitization of Payment Systems and its Antitrust Law Implications
    MPI Innovation und Wettbewerb - Brown Bag Seminar
    Ort: München 

    21.06.18 

    Digital Markets, Mobile Payments Systems and Development - Competition Policy Implications in Developing Countries in Light of the EU-Experience
    NYU Law School - 13th Annual Conference of ASCOLA - The Effects of Digitization, Globalization and Nationalism on Competition Law
    Ort: New York City