Big Data and Competition Law: Lessons from Innovation Markets
Abstract
As enforcement authorities consider whether to treat concentration of data as a distinct antitrust concern, past efforts to address innovation markets offer valuable lessons. Both frameworks involve analyzing whether concentration in an input—data or R&D—can impair innovation independent of effects on defined product or service markets. This article draws insights from the conceptual and operational challenges that limited the concept of innovation markets’ ability to gain traction to assess the viability of similar treatment for data. It applies those insights to the definitional complexities surrounding data—their diverse structures, dimensions, and uses across business models—that undermine the feasibility of coherent market definition and explore difficulties in determining the impact of competition in downstream markets, the relevant concentration thresholds and competitive effects, and potential procompetitive efficiencies. While acknowledging data’s role in spurring innovation, the article cautions against premature efforts to isolate it as a standalone competitive harm, given unresolved theoretical and empirical uncertainties. Ultimately, it argues for case-specific analyses grounded in established antitrust principles rather than categorical presumptions about data’s competitive impact.
Read the full piece at SSRN.