IP & Antitrust - #3 Data: Innovation, level playing field & access

3rd Webinar of the 1st « IP & Antitrust: Hot Issues » Conference organised by Concurrences, in partnership with Baker Botts and Oxera. Keynote speech by Mike Walker (Chief Economic Adviser, UK Competition and Markets Authority). Panel with Rima Alaily (Associate General Counsel - Competition Law Group, Microsoft), Carmelo Cennamo (Professor, Copenhagen Business School), Robin Noble (Partner, Oxera) and Maureen Ohlhausen (Partner, Baker Botts).

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Mike Walker discussed competition policy issues that revolve around data and in particular relevant theories of harm and corresponding interventions. It is often heard that data is the new oil – this is wrong, at least in the sense that there is an endless supply of data, and it is non-rivalrous. Data does share one characteristic with oil: it is very useful but comes with substantial negative externality in the form of damage to competition (as opposed to climate damage with oil). The question is therefore how we can reap the benefits of large-scale data without enduring too many competition downsides. Among the benefits are better search engines, more targeted social media and advertising and generalized economies of scope. The latter can lead to new insights and new products. These benefits are not unambiguous as economies of scale such as the ones at hand can lead to entrenched monopolies or be used to serve envelopment strategies to raise barriers to entry and discourage potential competition. This is how data use can lead to potential foreclosure. The CMA’s recent investigation into Facebook focuses on this sort of behaviour. Data can also produce discrimination whereby firms can appropriate consumer surplus and result in distributionally regressive outcomes. One has to remain objective in apprehending data and see that it brings potential harms as well as numerous benefits. Competition authorities should consider intervening, as there is a genuine debate to be had on this trade-off. How can one come up with a level playing field and lower barriers to entry for efficient competitors?

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