What direction is the European Union's innovation policy going in? Can legislative proposals such as the Digital Markets Act (DMA) make Europe fit for the digital age? Is the European IP framework still suitable to fulfil its fundamental functions in view of technological disruption? These were the questions addressed at this year's Alumni Conference, which was hosted on 9 July for the 17th time by the Institute in collaboration with the Alumni Association “Friends and Former Employees of the Max Planck Institute for Innovation and Competition”.
Due to the ongoing Covid-19 pandemic, for the first time the event took place online. Researchers and Alumni of the Institute as well as external guests from all over the world engaged in fruitful discussions on the current and future European law and policy framework for innovation and competition in digital markets. The conference was opened by welcome addresses of the chairwoman of the Alumni Association, Federica Togo, and the Managing Director of the Institute, Josef Drexl.
The European Union's Competition Policy
The first panel dealt with the competition policy of the European Union and was chaired by Dietmar Harhoff, Director of the Institute’s economic department. Cristina Caffarra, Senior Consultant to Charles River Associates and Visiting Professor at University College London, started by providing a critical look at the current competitive landscape and competition law enforcement within the digital world. In her keynote, she raised major concerns regarding, inter alia, structural underenforcement coupled with insufficient regulation, which also fails to properly address privacy concerns. The talk contained a critical look at the proposal for a Digital Markets Act (DMA) and further legislative action in the UK, the US, and Germany, and questioned whether the current regulatory environment helps to foster innovation.
In the second keynote of the first panel Rupprecht Podszun, Chair for Civil Law, German and European Competition Law and Director of the Institute for Competition Law at the University of Düsseldorf, spoke about “Taking Decisions on Regulating Big Tech”. He argued for a principled approach that should be followed by policymakers enforcing competition law vis-à-vis Big Tech companies. The presentation focused, inter alia, on the question where such principles come from (e.g. constitutional documents) and on the relationship between competition law and fundamental rights issues, such as personal data protection, sustainability or the protection of consumer autonomy. Within his keynote he discussed different ways of intervention against the backdrop of different market models.
The discussion after the first panel focused, for example, on the question which goals the proposed DMA pursues (if any). It was also discussed how a competition policy can be justified that aims at providing consumers with more sovereignty and choice in order to protect competition, but at the same time cuts down the users’ convenience by regulating the conduct of Big Tech companies.
The IP Policy of the EU
The second panel, chaired by Reto M. Hilty, Director at the legal department of the Institute, was devoted to the EU’s IP policy. Katharine Rockett, Professor at the University of Essex, started by laying the economic groundwork on intellectual property protection for data and Artificial Intelligence. She first elaborated on the general preconditions under which IP rights for data may be justified and put a special emphasis on issues of licensing and diffusion. After having illustrated the distinguishing features of data compared to more traditional subject matter for intellectual property protection and the implications of these features for intellectual property design, she made some final remarks on how Artificial Intelligence might alter traditional IP paradigms.
Building on this economic foundation, Matthias Leistner, Chair of Private Law and Intellectual Property Law with Information and IT-Law at the University of Munich, gave an overview on both the current IP landscape of the EU and upcoming IP policy reforms from a legal point of view. Against the backdrop of a newly-evolving overall access and portability paradigm in EU law making, he critically examined the protection of database works de lege lata under copyright law, the sui generis right for databases, and trade secrecy rules. He particularly pointed out the need for abolishment or at least substantial reform of the database sui generis right. Leistner then gave an outlook on how the European Commission plans to address this and other existing problems in the course of its upcoming Data Act.
The following lively discussion revolved around, inter alia, the problem of over-complex and overlapping regulatory levels to the detriment of small market players, the possibility of introducing new registration systems for as of yet unregistered IP rights, and the advantages of a more unfair competition law oriented approach towards the protection of databases.