Minor Digital IP and Law

The digitalization of society raises new concerns related to property (data property, intellectual property) and calls for new regulations to define the framework for future digital data and services exploitation protecting both citizens and companies.

This course covers three Law topics related to Intellectual Property and Digitalization:

• Personal data protection

The collection, processing and exploitation of data is at the heart of the digitalization of commercial and civil exchanges. This new reality is at the origin of new rights and obligations, including the entry into force of the General Regulation on Data Protection in Europe (GDPR). This part of the course is intended to draw up an inventory of current regulations in this area and its practical consequences for companies.

• Digital Strategies and Mergers

The emergence of digital technologies has transformed a large number of industries structure. More particularly, advances in Artificial Intelligence (AI), Machine Learning (ML) – acknowledged as general-purpose technologies (GPT) – will likely further lead to important changes within and across a variety of industries.
The first part entitled “Strategy in Digital Industries” introduces students to some of the fundamental concepts, strategic challenges and opportunities of digitization. We will identify digital firms’ specific characteristics and explore how digital technologies shape industries’ structure and firms’ corporate strategy.
The second part entitled “Key Takeaways on M&As in the digital economy” is dedicated to the analysis of Mergers and Acquisitions (M&As) moves in and across digital industries. A central part of the course will focus on understanding the implication of digital resources and digital technologies on firms’ acquisition strategies. Most prominently, we will discuss determinants of digital firms’ acquisition behavior from the perspective of entry in new industries and geographical markets, target choices and competitive dynamics. Lastly, we will discuss the importance of regulating M&As in the digital economy and the strategic responses firms can take against the well-known digital giants.

• Competition law applied to digital markets

Modern antitrust law was born in the United States in 1890 with the adoption of the Sherman Antitrust Act. Its goal was to promote economic fairness and competitiveness. To ensure such fairness, Section 1 prohibited cartels and Section 2, monopolization. Further texts were then adopted such as the Clayton Act in 1914 to reinforce these prohibitions and giving new powers to antitrust authorities such as the control of mergers.
The European Union, which first was built on an economic purpose – building a common market – thus provided itself with equally strong antitrust laws, article 101 of the TFUE (Treaty on the Functioning of the European Union) prohibiting cartels and article 102, the abuse of dominance (which could be seen as the European version of “monopolization”). Additional regulation such as the Council Regulation (EC) No 139/2004 of 20 January 2004, gives the European Commission and competition law authorities the power to control concentration between undertakings.
Nevertheless, in the words of the Crémer Report: “the specific characteristics of platforms, digital ecosystems, and the data economy require established concepts, doctrines and methodologies, as well as competition enforcement more generally, to be adapted and refined” (Crémer J., de Montjoye Y.-A. & Schweitzer H., « Competition Policy for the Digital Era », Final Report, 2019, p. 3).

This module will thus firstly focus on the anticompetitive practices and their legal prohibition (their criterion, the sanctions…) and secondly explore the difficulties that have arisen regarding digital platforms and their characteristics that make public enforcement extremely more complex. A few notable cases, such as Google Shopping or Microsoft will be studied, as well as ongoing investigations.
Finally, as the European Union has recently adopted the Digital Markets Act, a regulation aimed at digital “gatekeepers” providing “core platform services” to ensure fair and contestable markets, this change of paradigm from an ex post sanction to an ex ante regulation will enclose this module.

• Algorithmic anticompetitive practices (collusions and abuses of dominant position)

This section deals with anticompetitive practices implemented in digital markets in a competition law and economics perspective rooted in examples from EU and US case laws. We first consider the case of collusions between competitors both the ones supported by the use of algorithms and the ones potentially initiated by reinforcement learning based ones. Secondly, we illustrate the span of unilateral practices a dominant operator, acting as an ecosystem gatekeeper, may implement to acquire, consolidate, and extend its position, may implement at the detriment of its consumers and business partners (exclusionary abuses, exploitative abuses, and abuses of economic dependence). To illustrate these unilateral practices, we use the case of metaverses as an implementation field).

• Consumer protection and digital manipulations

The online consumer, like all consumers, suffers from biases in his decision-making process. While consumer manipulation is not new, with the digitalization of the economy it can take now on an unprecedented scale.
The session on online consumer manipulation is divided into three sections. First, are consumers aware of the characteristics of the digital markets on which they consume goods and services, and are they aware of its risks? This first section will also shed the light on the value of the online consumer for the platforms, with a focus on personal data.
Secondly, we will differentiate the risks and types of manipulation of the following four types of platforms: social networks, marketplaces, payment systems, and app stores. We will pay particular attention to dark patterns, online choice architecture, and algorithms tools for unfair and deceptive commercial practices.
The last section will be dedicated to the types of damages suffered by online consumers and the regulations to protect them. Ex-ante consumer protection with conformity by design obligations versus ex-post consumer protection with a power of judicial action granted to a public authority or to consumers to introduce damages actions? Which solutions have been chosen by the European regulator?

Johanna Deperi (Research Economist, Università degli Studi di Brescia)

Johanna Deperi is a Research Economist at the Università degli Studi di Brescia. Her research focuses on the industrial dynamics of the digital sector and the determinants of digital firms’ acquisition behaviour. She also has a strong interest in topics related to artificial intelligence, digitalization and the green transition. She is a research member of the European Research Council Project entitled ‘Disruptive Digitalization for Decarbonization (2D4D)’. She also co-authored the Annual Report on AI published by SKEMA BS (UCA) and is an active member of the European M&A Institute (eM&Ai).
johanna.deperi@unibs.it

Frédéric Marty (Université Côte d'Azur, GREDEG)

Frédéric Marty is a CNRS senior research fellow. Since 2003, he has been a member of the Group of Research in Law, Economics and Management (GREDEG) a join research unit of the CNRS and of the Université Côte d’Azur. He is also affiliate researcher of the French Economic Observatory (OFCE - Sciences Po. Paris), Researcher at the CIRANO (Montréal), and member of the EPPP Research Group of the Sorbonne Graduate Business School (IAE Paris Panthéon-Sorbonne).
He graduated in economics and management and holds a Ph.D. in economics from the Ecole Normale Supérieure of Paris-Saclay. His publications mainly deal with competition law and economics. His research fields encompass unilateral abuses of dominance, collusions, mergers control, State aids regulation and the history of competition policies. Frederic advises PhD students on competition law and economics mainly in digital and transport sectors.
Since 2019, Frédéric Marty is a member of the French Competition Authority for deliberations on matters relating to regulated legal professions.
frederic.marty@gredeg.cnrs.fr

Jeanne Mouton (PhD candidate)

Jeanne Mouton is a PhD candidate in economics at Côte d’Azur University under the supervision of Frédéric Marty. She is also an academic assistant for the European Economics Department, European Legal and Economics Analysis track, at the College of Europe in Brugge. Her research field covers industrial organization, competition law and economics, digital economics, economics of privacy, with a focus on damages actions following abuse of dominance infringements in digital markets. 
jeanne.mouton@coleurope.eu

Nathalie Nielson (PhD candidate)

Nathalie Nielson is a PhD candidate in law at Université Côte d’Azur. She is currently in her third year researching the subject of monopolization in antitrust law facing the challenges of the Digital Economy. Her aim is to submit a proposition to renew the prohibition, doing comparative law between American antitrust laws and European competition law. She has also a wide interest in international law, regarding for example International Trade Law or International Private Law, both classes that she teaches at University Côte d’Azur as Assistant to the Professor.
During her PhD, she has published five different articles in antitrust law, covering a wide range of subjects: mergers, sanctions, due process of law… She has also participated in multiple conferences such as the GREDEG PhD Workshop, a Symposium in Würzburg University and in Aix-en-Provence, the 2022 ASCOLA conference in Porto and conferences organized by Université Côte d’Azur.
nathalie.nielson@hotmail.fr

Brad Spitz (lawyer, Realex Avocats)

Accordion content

Johanna Deperi

• Adner, R., Puranam, P., & Zhu, F. (2019). What is different about digital strategy? From quantitative to qualitative change. Strategy Science, 4(4), 253–261.
• Barefoot, K., Curtis, D., Jolliff, W., Nicholson, J. R., & Omohundro, R. (2018). Defining and measuring the digital economy (Vol. 15). Washington DC: US Department of Commerce BEA.
• Bresnahan, T. F., & Trajtenberg, M. (1995). General purpose technologies ‘Engines of growth?’. Journal of Econometrics, 65(1), 83-108.
• OECD. (2021). Digital Economy Outlook 2021. Paris: OECD Publishing.
• Bajari, P. (2019). Challenges in the digital age. ECB Occasional paper.
• Iansiti, M. and Lakhani, K. R. (2017). Managing our hub economy. Harvard Business Review, 95(5):84–92.
• Parker, G., Petropoulos, G., and Van Alstyne, M. (2021). Platform mergers and antitrust. Industrial and Corporate Change, 30(5):1307–1336.
• Van Alstyne, M. W., Parker, G. G., and Choudary, S. P. (2016). Pipelines, platforms, and the new rules of strategy. Harvard Business Review, 94(4):54–62.

• Conseil d’analyse économique : Plateformes numériques et pratiques anti‐concurrentielles et déloyales (2020) : https://www.cae-eco.fr/plateformes-numeriques-et-pratiques-anti-concurrentielles-et-deloyales
• Conseil d’analyse économique : https://www.cae-eco.fr/plateformes-numeriques-reguler-avant-qu-il-ne-soit-trop-tard (2020) / English version https://www.cae-eco.fr/staticfiles/pdf/cae-note60-en-2.pdf

• Akman, Pinar. "A Web of Paradoxes: Empirical Evidence on Online Platform Users and Implications for Competition and Regulation in Digital Markets." Va. L. & Bus. Rev. 16 (2021): 217.
• European Commission, Directorate-General for Justice and Consumers, Lupiáñez-Villanueva, F., Boluda, A., Bogliacino, F., et al., Behavioural study on unfair commercial practices in the digital environment: dark patterns and manipulative personalisation : final report, Publications Office of the European Union, 2022, https://data.europa.eu/doi/10.2838/859030
• https://unctad.org/page/online-consumer-protection-legislation-worldwide

• Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) : L_2022265EN.01000101.xml (europa.eu)
• Crémer J., de Montjoye Y.-A. & Schweitzer H., « Competition Policy for the Digital Era », Final Report, 2019 : https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf

Brad Spitz

• Data Protection Commission (Ireland), Data Protection Basics: Full Guidance Note, https://www.dataprotection.ie/sites/default/files/uploads/2019-07/190710%20Data%20Protection%20Basics.pdf
• CNIL (France), Guide, Security of Personal Data: https://www.cnil.fr/sites/default/files/atoms/files/guide_security-personal-data_en.pdf

Students in apprenticeship in Master 2 Informatique benefit from a specific schedule arrangement for this minor. See below and please refer to the coordinator for more information.

All students except M2 Informatique Apprentices

• Johanna Deperi: Case anaysis and brief questions on the module - Submission deadline: 17/04/2023 (20 % of the final grade - coeff 2)
• Frédéric Marty: Case commentary - Submission deadline: 28/04/2023 (20 % of the final grade)
• Jeanne Mouton: Case anaysis - Submission deadline: 05/05/2023 (20 % of the final grade)
• Nathalie Nielson: Two questions on the module and a short case anaysis - Submission deadline: 17/03/2023 (20 % of the final grade - coeff 2)
• Brad Spitz: Brief questions and multiple-choice questions - Submission deadline: 17/04/2023 (20 % of the final grade)

M2 Informatique Apprentices

• Johanna Deperi: Short questions on the module and a case anaysis - Submission deadline: 08/06/2023 (20 % of the final grade)
• Frédéric Marty: Case commentary - Submission deadline: 08/06/2023 (20 % of the final grade)
• Jeanne Mouton: Case anaysis - Submission deadline: 05/06/2023 (20 % of the final grade)
• Nathalie Nielson: One question on the module and a short case anaysis - Submission deadline: 06/06/2023 (20 % of the final grade)
• Brad Spitz: Brief questions and multiple-choice questions - Submission deadline: 31/05/2023 (20 % of the final grade)