We have teamed up with the LIDC (International League of Competition Law) to share a series of podcasts examining some of the increasingly pressing questions around cloud computing, AI and competition law.
Over seven episodes, recorded in November 2024, Ben Evans, Shruti Hiremath and guests will look beyond the current position to identify some of the pressures the changing landscape will bring to bear.
Episode 4: The EU Data Act and Cloud Analogies
Are analogies between cloud and open banking and telecoms appropriate? A deep dive into the EU Data Act and the potential unintended consequences
Building on the discussion in episode 3, this episode 4 analyses the cloud provisions of the EU Data Act with reference to an influential and widely cited paper co-authored by Ben Evans and Sean Ennis. The panel explore the concept of ‘equivalence’ between cloud services and question the merits of the controversial ‘functional equivalence’ requirement, which is designed to boost switching between cloud providers. This leads to a discussion over whether the analogy between cloud computing services, which exhibit high degrees of feature complexity and innovation, and banking services, which exhibit both a limited number of key features and a relatively low level of innovation, is appropriate. As articulated by the authors in an earlier SCL article, it is suggested that these two differences are critical for considering the nature and focus of future cloud regulation and may limit the value of analogies to prior experiences with portability and interoperability. Moreover, the panel considers the authors’ observation that a significant number of cloud customers already have the possibility and incentive to account ex ante at contract stage for the trade-off between complexity and customisation in service functionality and ease of portability and interoperability. The discussion turns attention to profound concerns that the Data Act may have the unintended consequences of disincentivising innovation, strengthening the position of incumbents, and harming smaller cloud service providers by inter alia effectively commoditising cloud services to the extent that competition is reduced to price competition.
Panel
Ben Evans (Chair) is a Postgraduate Researcher at the School of Law and Centre for Competition Policy, University of East Anglia. He is a member of the LIDC Scientific Committee.
Shruti Hiremath is Counsel in the Clifford Chance Antitrust Team in London.
Lauren Murphy is Founder and CEO of Friday Initiatives.
Sean Ennis is Director of the Centre for Competition Policy and a Professor of Competition Policy at Norwich Business School, University of East Anglia.
The series was recorded on 7 November 2024, and the views and opinions expressed therein reflect the legal context and state of affairs up to that date.
You can also watch or listen via the LIDC website, YouTube and Spotify.
