At 9:00 a.m. on September 27, 2019, the “Intellectual Property Rights and Anti-monopoly in Digital Economy” workshop was held at the meeting room on the 10th floor of Building 4, Shuangqing Building. The workshop was hosted by Institute of Economics, School of Social Sciences, Tsinghua University and Tsinghua Law and Economics Research Group. Present were experts (sorted by the number of family name strokes) such as Yang Dong, Professor at Renmin Law School; Wu Hanhong, Professor at Renmin Law School; Yi Jiming, Professor at Peking University Law School; Meng Yanbei, Professor at Renmin Law School; Cui Guobin, Professor at Tsinghua University School of Law; Xie Danxia, Assistant Professor at Institute of Economics, School of Social Sciences, Tsinghua University; He Wengang, Partner of Zhong Lun Law Firm, and other experts and scholars in the industry and academia as well as officials from departments concerned.
The workshop was co-chaired by Xie Danxia and Wu Hanhong. It mainly discussed Issues such as Anti-monopoly and Intellectual Property Rights in Digital Economy. In the first place, Xie Danxia gave an overview of the workshop and its direction. Prof. Xie stated that digital economy was a very important point of growth in our national economy, and new business models emerged continuously. Of course, these new business models, which were based on digital technology, might give rise to some new problems harming social welfare, such as privacy protection and monopoly-related new problems, while driving economic growth and employment. The development of digital economy will have both positive and negative effects where law and economics should play a key role. How to avoid such negative effects while pushing forward digital economy is a core issue that both regulators and scholars of law and economics should focus on.
Later, Wu Hanhong sorted out schools of thought and theories in a monopoly-related economic analysis. Prof. Wu indicated that Western economists and Marxist classical authors suggested that monopoly would emerge in a real market. Consumers will face a variety of options after such monopoly emerge. Excessive centralization of power, though seemingly beneficial, is inherently dangerous. So decentralization of private economic power is a good approach to protection of the private enterprise system. Over the past 11 years since the Anti-monopoly Law was enacted in China, gratifying progress has been made in both administrative law enforcement and civil procedure. Economics is playing an increasingly important role in anti-monopoly and organic combination of anti-monopoly practice and industrial economics will be a trend in China. Wu Hanhong believes that economic reasoning and analysis will have a more significant role in EU and U.S. anti-monopoly law enforcement.
Lawyer He Wengang, Partner of Zhong Lun Law Firm, shared his years of experience as a lawyer in the U.S. in response to Prof. Wu’s speech. The earliest anti-monopoly cases were dealt with in a quite simple manner in the U.S.. Once a behavior as stipulated occurred, it would be ruled illegal. At present, similar cases will not be so judged by courts instead economic models will be used to analyze whether a behavior has a positive or negative impact on the market. He mentioned that an increasing number of anti-monopoly cases in the U.S. were applying the rule of reason rather than that of per se illegal and in particular, with the development of economics, economic models were of great significance to handling of anti-monopoly cases. He gave an example: initially, fixed prices were usually judged to break the anti-monopoly law. However, more detailed market economic analysis will be made to serve as the basis of judicial judgment.
Then, Yi Jiming probed into intellectual property rights themselves as a monopoly power, especially data framework, data power properties and the game between public and private rights. Yi has conducted deep analysis and discussion on major issues such as the definition and evolution of data rights and legal ownership of data rights.
Meng Yanbei has done a lot of analysis on challenges in the coming data world within the original legislative analysis framework in the On Anti-monopoly Problems in Mathematical Economics, especially algorithmic collusion. Meng offered many unique insights into the evolution and problems of different areas of the anti-monopoly law in the data era.
In his keynote speech titled “E-Commerce Law Is Significant to the Development of Platform Economy”, Yang Dong mentioned the research on the “either-or” problem with e-commerce and 3Q war in 2010, the earliest case of Internet “either-or”. As one of the earliest big data researchers in China, Yang offered his unique insights into and token economy and other relevant frontier issues.
Xie Danxia elaborated on the Empirical Research on Law Economics of Game Live and discussed with experts attending the workshop. The Empirical Research on Law Economics of Game Live is the latest research achievement of “Tsinghua Law and Economics Research Group” led by Prof. Xie. Based on this research, Prof. Xie stated that game developers owned games while anchors used pictures, resulting in controversies over the ownership of intellectual property rights. In economic models, games themselves are products and live pictures used by anchors might constitute new products. Statistically economic methods can be used to analyze live pictures and identify which makes greater contributions. Live broadcast also requires anchors’ creative labor. Prof. Xie made an empirical study of major issues in law economics of game live and demonstrated anchors’ value contribution, social welfare and other issues through models. With respect to intellectual property rights of game live, distribution of such rights and benefit sharing, Prof. Xie brought forward that FRAND principles in SEP (standard essential patent) and their analogues could be applied to negotiations and licensing. Lawyer He Wengang, Partners of Zhong Lun Law Firm also mentioned that rights and interests in game live or its licensing could be dealt with by reference to music copyright licensing, so as to reduce socio-economic costs and overcome potential monopoly barriers, provided that different weights are applied to game license value. All professors gave their recommended paths, for example, whether the anti-monopoly law, the intellectual property law or contract law remedies apply.
The workshop ended with profound comments and summary by Cui Guobin. First of all, Prof. Cui put forward his own opinions on the protection of rights and the establishment of a benefit mechanism in the game live industry. Secondly, he made some comments on important arguments raised by different speakers and then offered his own viewpoints and suggestions.
Present were also delegates from companies such as JD.com, Sohu and Baidu and officials from departments concerned, who had heated discussions on the topics.
The workshop witnessed lively and warm discussions on hot issues, on which participants from the academia and industry gave their views and insights in succession, exerting a positive impact on social practice and research. The workshop came to a successful conclusion in the midst of a heated discussion.
