Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Monday, May 1, 2017
Online Retailers to Come Under Consumer Protection Law
Online Retailers to Come Under Consumer Protection Law
According to Trak.in report, in the cabinet note, a proposal has been made to set up Consumer Protection Authority that will post for promoting of products that are "risky and unsafe". There will be procurements for item liability actions, for unfair contract to ensure consumers put in an unequal haggling capacity.
The board will go about as an autonomous body that will likewise have the obligation of informing consumers about the quality, immaculateness, standard, deluding and tricky commercials by sellers. Additionally, councils power will reach out to:
- Conducting investigations
- Conducting searches
- Seizing records, articles and documents, and so on both suo moto and on grumbling
- Right to summon careless and guilty online sellers
- Order withdrawal of false, misleading or misdirecting advertisements
- Order review of hazardous or dangerous products
- Issuing wellbeing notices and
- Imposing fines if discovered blameworthy of voilating the law.
Taking a gander at the development of online retail in the nation, it is critical to consider it as a standard business also. The business opportunity for retailers offering online and going online is rich. In such a circumstance it is important to secure the consumers too against the unclear practices received online, henceforth this cabinet proposal ought to come as an advantage for the consumers in India.
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Saturday, April 29, 2017
Is there a competition law issue lurking on the horizon of cloud computing
Is there a competition law issue lurking on the horizon of cloud computing
In 2006, Amazon made available a beta version of a service called “Elastic Compute Cloud”, described as
As such, AWS early on enjoyed first mover advantage (being the first cloud computing service “to succeed on a large scale”) and continues to benefit from network effects. As well, the burden of switching costs served to make it more likely that a user will be reluctant to move to another cloud service. Based on these advantages, AWS has raced far ahead of its competition. It is three times larger than its nearest competitor—Microsoft Azure. Other potential competitors are even less visible, including competing offerings from IBM and Google. At least these two hi-tech behemoths are still in the game; Hewlett-Packard has apparently simply withdrawn from the field. Even Salesforce.com, which is a prominent provider of on-line applications, announced that it will begin to make use of AWS services.
What will slow AWS’s continued dominant position in the industry? The article suggests that users are aggressive in trying to avoid being locked-in to AWS as their sole cloud services provider. It further reports that, at least in Europe, two-fifths of the companies in the cloud use more than one cloud service. Also, while the AWS service is highly popular with start-up developers, it has less success in attracting larger, established companies, in part, it would seem, from a hesitation by such companies to be tied up with a potential competitor, given the ever-increasing nature of Amazon’s product and service offerings. These countervailing forces argue that there may be a limit as to how much more AWS can grow.
Still, based on the information in the article, AWS does seem to enjoy a dominant position with smaller developers. If this were to be found to be the relevant population for vetting competition law concerns, then attention to pricing (should prices begin to tick upwards) and the ease or difficulty of switching to another cloud service, bears watch, especially since the computing infrastructure required might serve as a potential barrier to entry for competitors. Or perhaps less conventional metrics will be brought to bear. The article itself does not go into a discussion of how anti-competitive behavior by AWS might look, stating merely that—
“AWS could end up dominating the IT industry just as IBM’s System/360, a family of mainframe computers, did until the 1980s. If that happens, the antitrust authorities may eventually have to step in, as they did with IBM.”
Even more, this Kat remembers the frequently made comment that antitrust suits such as the IBM case, especially in the technology area, are almost always late to the game: either the technology is passing the target industry by, or the law suit is a cue to the target to seek new products and markets. If this be true, then it raises an interesting question: what would the filing of such a law suit say about the cloud-computing industry? Is the pace of innovation so seriously stuck in neutral, and the nature of cloud-computing so very different from the world of IBM’s System/ 360 family of mainframe computers, that there might be greater justification in considering such a law suit, should there be prima facie indicia of anti-competitive behavior? Or will such a suit be a redux of the IBM litigation? Stay tuned (especially if your computing connectivity is from the cloud).
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The Commissions DSMS and CJEU case law what relationship
The Commissions DSMS and CJEU case law what relationship
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| The proposal (for a directive on copyright in the Digital Single Market) |
As reported by this blog, on 14 September last the EU Commission unveiled its second copyright package, ie a new set of proposals [the first being the proposed regulation on cross-border content portability in December 2015] aimed at improving the existing EU copyright framework as part of its Digital Single Market Strategy (DSMS).
Among the contents of the package, so far what has attracted the greatest degree of attention is the Commissions proposal for a directive on copyright in the Digital Single Market (DSM Directive).
Much has been said on the ambitiousness (or lack thereof) and merits (or demerits, depending on ones own perspective) of relevant provisions, notably those regarding new mandatory exceptions [Articles 3 to 6], a new related right in press publications [Article 11], and the so called value gap [Article 13].
Discussion has been focusing on the relationship between the new proposed directive and the existing body of legislation [for instance: is Article 13 compatible with the Ecommerce Directive? The DSM Directive is silent as regards how it relates to this piece of EU legislation] and the economic/legal rationale of the various initiatives [do we really need a new related right for press publishers, and will it change anything?].
The DSM Directive and the CJEU: why asking?
What however appears to have been left partly out of the debate is what relationship the DSM Directive has and will have with the existing body of case law of the Court of Justice of the European Union (CJEU).
The question is worth addressing for two main reasons, I think.
First, because the DSM Directive itself attempts a codification of CJEU case law. Examples are Recital 38 [with regard to the 2009 decision in LOréal, noted here] and Recital 36 [with regard to the 2015 decision in Reprobel, noted here].
Secondly, because the DSM refers to key concepts but fails to define them. This is particularly the case of communication to the public. For instance, from Recital 38 it is apparent that an obligation for hosting providers that "store and provide access to the public to copyright protected works or other subject-matter uploaded by their users" to conclude licensing agreements with rightholders arises when they perform an act of communication to the public. Similarly, with regard to the press publishers right, Recital 33 clarifies (?) that this new related right would not go as far as including "acts of hyperlinking which do not constitute communication to the public" within its scope.
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| Does the proposed directive re-write certain CJEU case law? |
(1) A "codification" of existing CJEU case law: a good attempt?
Starting from the first question, while in principle it is laudable that policy action considers and addresses the implications of judicial decisions, in the case of the DSM Directive this attempt may prove controversial.
Recital 38 states that "[i]n respect of Article 14 [of the Ecommerce Directive], it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor."
From this it could appear that: optimisation ? active role ? ineligibility for Article 14 safe harbour
But is this what the CJEU really said in LOréal [and previously, in Google France]? Didnt the Court rather state [simplifying] that: active role, eg optimisation ? knowledge/control data stored ? ineligibility for Article 14 safe harbour
Rather than codifying LOréal - at Recital 38 the Commission has created done something different, in the sense that the knowledge/control element appears to have vanished. Does this mean that falling within Article 14 safe harbour might become increasingly difficult for hosting providers that give access to "large amounts of works"? If it was sufficient for a hosting provider to optimise results [even by means of an automated process and even without the need for any knowledge/control of relevant data] to be outside the boundaries of the safe harbour, then Article 14 would become applicable in the [very tiny, eg possibly only Dropbox-like situations] minority of cases ...
Turning to Recital 36, the Commission appears to link the introduction of a press publishers right to the outcome of the Reprobel case. But did that case [beneficiaries of private copying levies on printers sales] have to do with "press publications" or "digital uses" at all? No, so the raison dêtre of Recital 36 is a bit difficult to grasp ...
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| Acts of "communication to the public" |
(2) Lack of definition of key concepts
Turning to the second point, the DSM Directive refers extensively to a concept that the InfoSoc Directive itself fails to define, ie "communication to the public".
It has taken the CJEU several judgments to try and make sense of the notion of "communication to the public", but as of today it is unclear whether the subjects referred to in Article 13 of the DSM Directive would be considered as making acts of communication to the public themselves. Yet, the entire Article 13 is built - and almost considers it a given - on the idea that hosting providers may be primarily liable for unauthorised acts of communication ...
In the recent GS Media decision [discussed here, here, here, here], the CJEU confirmed that if one construes communication as merely requiring the making available of a work, ie without the need for any actual transmission, then what needs to be considered is "the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the ... work" [para 35]
One could wonder whether in the case of hosting platforms, it is the host or rather the user that plays such indispensable role to give access to a protected work.
As I noted here, in light of certain decisions of the CJEU and national courts alike, it may be argued that – in the case of a copyright work made available through the service of a passive online intermediary (host) – the latter would not commit an act of (unauthorised) communication to the public (potentially giving rise to primary liability for copyright infringement), because the role that is ‘indispensable’ in the whole process is the one of the third-party/uploader, rather than that of the hosting provider.
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| Should anything be changed in the proposed directive? |
A similar degree of uncertainty also exists in relation to Recital 33, with the addition that in the case of the press publishers right it is not entirely clear why Article 11 refers to the making available right [ie a sub-species of the right of communication to the public, as the CJEU clarified in C More, noted here] while Recital 33 refers to the right of communication to the public ...
All in all the DSM Directive fails to define what is to be intended by "communication to the public" and the questions becomes whether this would raise uncertainties when determining when a host provider is required - as opposed to merely invited - to conclude licensing agreements.
Conclusion
Unlike legislative proposals advanced in the past, from the DSM Directive it is clear that EU legislature is to give account not only of existing legislation but also CJEU case law and its impact.
While this demonstrates both the relevance of the CJEU in shaping the EU copyright regime and the attention that different EU institutions devote to each others activity, it also raises questions regarding the substance of such interplay and resulting power struggles.
On the one hand, the DSM Directive seems to engage in an attempt to codify or even re-write and remedy to negative [negative, but for whom?] outcomes of CJEU cases. Recital 38 and LOréal is an example but an even more bizarre one if Recital 36 and Reprobel ...
On the other hand, certain provisions in the DSM Directive [eg Article 13] are built around certain key notions, eg communication to the public, that at the legislative level are defined nowhere. The question thus becomes whether the resulting gaps should be filled by referring to relevant CJEU decisions. If this was the case than the results might not be those wished for by certain categories of stakeholders ...
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