Jörg Hoffmann

Doctoral Student and Junior Research Fellow

Intellectual Property and Competition Law

+49 89 24246-594
Contact

Areas of Interest:

Antitrust Law, Intellectual Property Law, Law and Economics, Regulation of the Data Driven Economy (Data Access, AI and FinTech)

Academic Resumé

Since 2018
Junior Research Fellow at the Max Planck Institute for Innovation and Competition

Doctoral Candidate at the Ludwig-Maximilians-Universität München (LMU) under the Supervision of Prof. Dr. Josef Drexl LL.M. (Berkley)

Topic: Data Access Regulation 

2017
Second State Exam in Law (equivalent to bar exam), Hamburg, Germany 

2014 - 2017
Legal Clerkship in the Jurisdiction of the Court of Appeal Hamburg, Germany, inter alia at the European Commission, Brussels, (DG GROWTH) the Permanent Mission of the Federal Republik of Germany to the United Nations, New York, USA and CMS Hasche Sigle, Hamburg, Germany (Antitrust Law)

2014
First State Exam in Law
Munich, Germany

Study of Laws
Ludwig-Maximilians-Universität München (LMU) and UCL (London)

Work Experience

2017
Lawyer at Hogan Lovells LLP
Frankfurt, Germany (EU Regulatory, FinTech)

2010 - 2015
Research Assistant inter alia at Taylor Wessing Hamburg, Milbank, Tweed, Hadley and McCloy LLP, Munich, Universidad Autonoma Metropolitana Mexico City,  Max-Planck-Institute for Innovation and Competition, Munich.

Publications

Research Papers

Demystifying the Role of Data Interoperability in the Access and Sharing Debate (Max Planck Institute for Innovation & Competition Research Paper, No. 20-16), 2020, 37 pp. (together with Begoña Gonzalez Otero).

  • In the current data access and sharing debate, data interoperability is widely proclaimed as being key for efficiently reaping the economic welfare enhancing effects of further data re-use. Although, we agree, we found that the current law and policy framework pertaining data interoperability was missing a groundworks analysis. Without a clear understanding of the notions of interoperability, the role of data standards and application programming interfaces (APIs) to achieve this ambition, and the IP and trade secrets protection potentially hindering it, any regulatory analysis within the data access discussion will be incomplete. Any attempt at untangling the role of data interoperability in the access and sharing regimes requires a thorough understanding of the underlying technology and a common understanding of the different notions of data interoperability. The paper firstly explains the technical complexity of interoperability and its enablers, namely data standards and application programming interfaces. It elaborates on the reasons data interoperability counts with different levels and puts emphasis on the fact that data interoperability is indirectly tangled to the data access right. Since data interoperability may be part of the legal obligations correlating to the access right, the scope of interoperability is and has already been subject to courts’ interpretation. While this may give some manoeuvre for balanced decision-making, it may not guarantee the ambition of efficient re-usability of data. This is why data governance market regulation under a public law approach is becoming more favourable. Yet, and this is elaborated in a second step, the paper builds on the assumption that interoperability should not become another policy on its own. This is followed by a competition economics assessment, taking into account that data interoperability is always a matter of degree and a lack of data interoperability does not necessarily lead to a market foreclosure of competitors and to causing harm to consumer welfare. Additionally, parts of application programming interfaces (APIs) may be protected under IP rights and trade secrets, which might conflict with data access rights. Instead of further solving the conflicting regimes within the respective legal regimes of the exclusive rights the paper concludes by suggesting that (sector-specific) data governance solutions should deal with this issue and align the different interests implied. This may provide for better, practical and well-balanced solutions instead of impractical and dysfunctional exceptions and limitations within the IP and trade secrets regimes.
  • Available at SSRN

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

  • 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 pp. (together with 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 pp. (together with Reto M. Hilty 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 pp. (together with 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 pp. (together with 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

Opinions

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 pp. (together with Reto M. Hilty et al.).

Further Publications, Press Articles, Interviews

Intellectual Property Justification for Artificial Intelligence, Oxford Business Law Blog 2020 (together with Reto M. Hilty, Stefan Scheuerer).

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

    Memberships

    Academic Society of Competition Law ASCOLA 

    Deutsche Vereinigung für gewerblichen Rechtsschutz (GRUR)

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

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

    Presentations

    13.12.19

    Sektor-spezifische Zugangsregime von Wettbewerbern
    German Ministry of Justice - Consumer Protection Days 2019
    Location: 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 
    Location: Singapore


    27.06.19

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


    07.18

    Digitization of Payment Systems and its Antitrust Law Implications
    MPI Innovation and Competition - Brown Bag Seminar
    Location: Munich


    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
    Location: New York City