National Efforts to Control the Internet: to Regulate or Not? - St. Petersburg International Legal Forum

1. National Efforts to Control the
Internet: to Regulate or Not?
Giovanni Maria Riccio
E-Lex Law Firm - Italy
gmriccio@e-lex.it

2. Taxonomy
• What is regulation? What is innovation?
• According to the neoliberal paradigm
regulation is only a good regulation
• The problem is how the regulation fits with
the emerging business models
• Why we consider the regulation as a limit to
the innovation?

3. Why companies innovate?
Successful innovation is
normally a source
of temporary market power,
eroding the profits and
position of old firms, yet
ultimately succumbing to the
pressure of new
inventions commercialized
by competing entrants

4. The Circle of Innovation

5. Disruptive Innovation
 Lower performances
 New performance features
 Initially developed for small
markets
 Quality improves as the
market/revenues improve
 As the quality improves, the
new products – offering new
features – replace the older
ones

6. Regulation may…
Support innovation
Limit innovation
Be indifferent to the innovation (and leave
space to self-regulatory measures)

7. Supporting Innovation
• Interoperability and IoT technologies
• The necessity of using standardized technology is
limited by existing patents
• SEPs (standard essential patents): patents which
are essential to implement a specific industry
standard
• SEPs grant patent holders a significant power
towards other developers that cannot implement
their inventions

8. Motorola Case
EU Commission April – 2014
• According to the European Commission, IP rights
are a crucial aspect of the Single Market, as they
play a key role in promoting innovation
• The injunction made by Motorola against Apple is
an abuse of a dominant position
• Motorola, holding a SEP, licensed on FRAND
terms (fair, reasonable and non-discriminatory)
• Apple agreed to enter into a FRAND licence
agreement

9. Limiting Innovation
Uber Cases
• Madrid Commercial Court – Dec. 9, 2014 (Prel. injunction)
 Uber doesn’t own the administrative authorizations required
by the Spanish Law and by the Law of the Madrid Region and
breaches the Spanish competition law of 1991
• Commercial Court of Bruxelles – Mar. 31, 2014
 According to the SA Taxi Radio Bruxellois, Uber violates the
unfair commercial practices as it offers its services lacking
administrative authorizations
• German cases (Frankfurt, Hamburg, Berlin)
 Again, administrative authorizations are required by the
German Trasport Act - “PBefG”

10. Are these provisions complying
with the EU Treaty?
• According to Uber, State measures infringe
articles 102 and 106 of TFEU since they would
create a monopoly that is unfavorable to the
welfare of consumers
• Commercial Court of Paris (Dec. 12, 2014)
Submitted the question to the French
Constitutional Court as well as to the ECJ
 French Constitutional Court – Décision n°
2015-468 – May 22, 2015

11. Limiting Innovation (2)
• Article 180 of the Italian Copyright Law provides that the
collecting management of copyright is reserved to the Italian
society of authors and publishers (SIAE)
• The paradox after the CISAC decision: non Italians CCS can
collect royalties in the Italian territory, which is forbidden to
companies based within the Italian territory
• The EU Directive on CSS doesn’t affect existing monopolies

12. National Efforts to Control the Internet
The “battle” of copyright holders
• HADOPI Law
• AGCom Regulation
• Ley Sinde
Addressing ISPs, user generated platforms or
users liability is the right (and most efficient)
way to protect copyright?

13. Technical Solutions Rather
than Regulatory Solutions
Two examples
Privacy by design
Attacking the money supply (so-called “follow
the money approach”)

14. Follow the money

15. Privacy by Design and by Default
EU Data Protection Directive
• No specific rule addressed
to privacy by design in the
EU Directive
EU Data Protection Regulation
• Having regard to the state of
the art and the cost of
implementation, the
controller shall implement
appropriate technical and
organizational measures and
procedures in such a way that
the processing will protect the
rights of the data subject.

16. Thank You!
Via dei Barbieri, 6
00186 Roma
Tel. +39-06.87750524
Fax +39-0692931778
gmriccio@e-lex.it
www.e-lex.it