Intellectual Property and Competition Law

It is important to say that innovation influences the market and its operators, especially about competition conditions.

One of the most significant technological advances relates to the possibility of capturing a huge amount of information and the rapid processing thereof (two of the main features that make up the phenomenon known as big data). This not only entails the emergence of specialised operators in these activities, but also makes a "data economy" possible.

In this regard, it expands the profitability of business models based on data and gives more strategic value to the collection thereof. The increased possibilities of obtaining revenue from the information lends greater efficiency to the strategy of setting a price of zero in one of the markets on which platform-type (two-sided) business models depend.

However, the market in which an operator offers its service at zero cost is not free from possible competition problems in parameters other than price (significantly, quality: whether understood as adequately classified information or the level of privacy offered to users).

Therefore, the competition authorities must necessarily abandon a price-centric perspective and enter into an assessment of other parameters already foreseen in the Competition Act.

Some of the most recent and significant changes that technology has stimulated in the economy have included the appearance of multiple operators that base their business model on the processing of information and can access it thanks to (i) increased digitisation, which has enabled digital interactions, and (ii) a large volume of information.

These changes have not only allowed the proliferation of business models based on information processing but rather, in particular, they can be found in those operators that have achieved the most significant success recently (from Google to Facebook, WhatsApp or LinkedIn, through to Uber and Airbnb).

From the industrial revolution and until well into the twentieth century, the most important competitive advantage of economic operators was based on their ability to produce and distribute goods or physical products. However, in recent decades, a particular phenomenon has emerged of the transformation of physical goods (atoms) into information (bits). In other words, the physical format is becoming less relevant while the importance of data continues to grow.

A trend which, far from disappearing, it seems will become ever more entrenched, with the eventual widespread use of 3D printers. Thus, the most important competitive advantage appears to have moved from production and distribution to information (data) and its management. Multiple economic operators, aware of the growing importance of data, have invested in aspects related to it, particularly in its collection and processing.

This has led to the phenomenon known as big data, characterised by the "4 Vs" volume, variety, velocity and veracity.