20131437 Yusuf Salman 1 - REVISED

Deriving Competition from Monopolised Markets: the ICT User as a Consumer1. IntroductionThe competitive market model accommodates two different multi-user structures. The First is the consumers, who try to maximise their utility by buying goods and services in a competitive market, and second is the producers that have the resources to produce, and try to maximise their utility (profit) by selling goods and services in the same market. This market, by definition of the model, consists of indefinite numbers of consumers and producers, where each has a negligible individual effect on the markets dynamics, but all create an environment for an optimal price according to the cumulative supply and demand. Therefore, all actors are price takers. This article will take this economic model as a basis alongside Consumer Theory and approach the idea of users of information and communication technologies (ICTs) as the consumers.A typical discussion on users and suppliers of goods and services in this context is concerned with patent laws, software copyrights, competition law, and cross-media ownership. While multinational corporations monopolising the ICT markets is still an issue of interest, some models of approach and methods of legislation intended to increase competition should be questioned in terms of the user as an active, unstable force that does not always act as an insignificant individual actor in the market. Other stakeholders like the state or other interest groups aside, this issue has the two most significant groups of stakeholders: the users of ICTs, and ICT firms creating goods and services. Assuming that the interests of both groups will need as little protection as possible through the natural functioning of the market, the competitive market model serves both sides in theory. On the other hand, the concept of competition is one not fixed and stable in real life, but a dynamic, unstable concept.[footnoteRef:1] Moreover, do the legal measures and concepts to increase competition and protect both the individuals (ICT users) and organisations (ICT firms) in terms of privacy, ownership, and similar issues actually create a monopolised market in terms of an opportunity approach that would try to achieve a competitive equilibrium of opportunity, rather than a price equilibrium in a perfect competition? This article will outline a basic set of principles and approaches in theoretical models in economics and intellectual property law, to investigate how economic models relate to the current competitive issues discussed under intellectual property law in reference to the subjects like the rights of the users[footnoteRef:2], regulations implied by states or other authorities, and the possible outcomes of policy regarding ICTs. [1: Noll, Roger G., The Conflict over Vertical Foreclosure in Competition Policy and Intellectual Property Law, SIEPR, No. 03-22 , 2004.] [2: Users in general.]

2. Competitive Market Model and Consumer TheoryAccording to Consumer Theory, when an exchange takes place by voluntary decisions, we assume the exchange makes both sides better off, as such an exchange would not have taken place voluntarily if it did not favour both sides. So, an exchange of money, with a device such as a mobile phone or a service such as a subscription to a social networking website already creates some form of positive marginal utility for the consumer and the seller, as an individual would not spend his/her money if it did not increase his/her utility. The phrase some form of here is associated with the assumptions about exchange under Consumer Theory, such as parties in an act of exchange being perfectly rational.[footnoteRef:3] Besides, such assumptions not only are concerned with the individual dynamics benefiting individuals, but the society benefiting from the collection of individual actions as well.[footnoteRef:4] Some discussions on the monopolisation of ICT markets and intellectual property rights include this approach as a negative element, as people are naturally not perfectly rational, or the idea that some intervention is required to protect the consumer or the producer is common. So, in the scope of this article, such a form of positive marginal utility is explained as the idea of marginal utility for the user. That is, even if the user might not actually be better off by buying a new mobile phone, they would not have bought it if they thought they would be worse off. In this example, the consumer at least thinks that they are better of, and this is a form of utility. [3: Prasch, Robert E., Toward a General Theory of Market Exchange, Journal of Economic Issues, Vol 29 (3), 1995, pp. 807-828.] [4: Thomton, Mark, Cantillon and the Invisible Hand, Quarterly Journal of Austrian Economics, Vol. 12(2), 2009, 27-46.]

While approaching the ICT market on this level, one might argue that the competition argument regarding both sides should be a utility-optimising one, rather than a utility-maximising one. The reason for this is that, with these models and concepts, the utility already exists, but must be shared almost evenly within individuals or individual organisations in each group of stakeholders. Utility also cannot be materially quantified; that is, Person As utility after consuming an apple may be higher than Person Bs utility after buying a new car. The notion of utility in this sense calls for the introduction of other concepts like emotions, privacy, human rights, and creative industries in the discussion of the ICT market. According to Vilfredo Pareto, microeconomic decisions made by individuals are largely irrational, and only rational behaviour in economic decisions would be either repeating the thing that seems to work, or approaching utility as a function derived from experience of having consumed a thing and being satisfied with the consumption.[footnoteRef:5] According to Bruni and Sugden, Paretos approach in this matter and the current approaches in behavioural economics suggest that economics is a separate behavioural science that is independent of psychology.[footnoteRef:6] In any case, both of Paretos identification methods for logical behaviour would stay outside of the assumptions of rationality, because repeating what seems to work is not necessarily logical, but most of the time a flawed emotional way of thinking that might not lead to what is rational, but maybe could help individuals reach what seems rational. The consumption of something tried and felt satisfying might stand as first-hand evidence because it is beneficial; however, it might also interfere with the possibility that the consumer will be willing to try something else that might be even more beneficial. In this sense, an opportunity approach would oppose some assumptions of the competitive model and Consumer Theory, as it is about the opportunity and fairness in entering the market, regardless of the fairness of conditions within the market. For example, with this approach, a company worth $10 million and able to make $1 million a year has the same level of opportunity with another company worth $1 million, but able to make $100 thousand a year. The basic competitive model does not take into account the differences in capital, opportunities in investment, or the intermediaries which break the hypothetical competitive cycle that consists of two sets of actors. [5: Bruni, Luigino, Sugden, Robert, The Road Not Taken: How Psychology Was Removed from Economics, and How It Might be Brought Back, The Economic Journal, Vol. 117(516), 146-173.] [6: Ibid.]

The competition approach dictates that any Firm A has as much right to exist as any other Firm B, while the individual has the right to have as many choices as possible in consumption. In the real world, this approach is not concerned about creative input, or emotional utility. So, in order for the user to make a rational choice about one particular kind of good, the differences among different brands should be present. So, in real life, consumers have preferences depending on many different material differences among brands and models of goods and services, and various personal characteristics. Prasch also argues that this is a factor that undermines standard theories about exchange, as the utility that a person receives from a particular exchange is, under certain circumstances, not independent of the nature of the traded goods, their income, or social status.[footnoteRef:7] According to the competitive model, an ideal market requires identical products from different producers, which does not reflect individual preferences in real life. While this article makes use of the competitive model, the definition of competition here should be being able to choose and be chosen among materially different alternatives with individual opportunities as uniform as possible. [7: Thomton, Mark, Cantillon and the Invisible Hand, Quarterly Journal of Austrian Economics, Vol. 12(2), 2009, 27-46.]

Within the scope of this article, the competition is not necessarily one of goods and services, but of opportunities, especially the distinction of formal equality and compensatory equality of opportunities. Joseph asserts that formal equality of opportunities is essentially a principle of non-discrimination or procedural fairness which thus includes concepts like recruitment according to merit, on the other hand defining compensatory equality as a form of equality of opportunities that demands compensation for the ones who started off in a disadvantaged position.[footnoteRef:8] This article completely ignores the second type of equality of opportunities, as it is not the aim here to try to go deeper into individual actors complex personal or commercial interests. The assumption here comes from the preferences approach of Consumer Theory, and the question of would the consumer consume a Good A, if it did not feel considerably superior to a Good B? By the opportunity approach, Good A must have the same right to be considerably superior to any other good, in direct proportion to its capacity as a product that has a function, meaning, and an opportunity cost[footnoteRef:9].With this question of superiority in mind, the competitive model seems to fail as a fully equipped tool to understand real-life dynamics between consumers and producers, because it is merely a model. It still is an approximation of how markets should work under a certain perspective, and it is at least helpful in understanding the differences between monopoly and competition. [8: Joseph, Lawrence B., Some Ways of Thinking about Equality of Opportunity, the Western Political Quarterly, Vol. 33(3), 1980, 393-400.] [9: The opportunity cost here is the cost including the emotional, personal cost of choosing Good A over another good.]

3. Competitive Approaches in the LiteratureThis section of the article approaches two different competitive concepts to clarify the concept of competition in intellectual property law. The Privacy by Design Approach, while largely competitive, does not seem to be a competitive option in terms of opportunities, when it is a requirement or form of standardisation. On the other hand, this approach may also be used as a separate choice by a producer in promotion of its products. In such a case a consumer who is more concerned about privacy will choose the product based upon these principles, and another consumer who is more concerned about other functions will choose the product based upon other types of functions. Secondly, the captive audience doctrine explains how concepts like freedom of choice and freedom of options, or opportunities relate to intellectual property rights, and how such concepts might be utilised to achieve a balance of opportunities. The third part of this section compares and incorporates monopolistic rights and innovations, and is based upon questioning the divisibility and relationships between the two.3.1. Privacy by Design ApproachThe Privacy by Design Approach is a control-based approach concerning the control of the user over the ICT tools and services they use. The Privacy by Design Approach which argues that interactive/mobile goods, applications and services should be designed to protect privacy, rather than setting privacy as a rule to cope up with user concerns, has been adopted by the Federal Trade Commission[footnoteRef:10] in the United States and the European Commission[footnoteRef:11] in the year 2012. On this level, the respect for the privacy of the individual is an aspect of a good or a service that provides utility. Among the seven basic principles provided by Ann Cavoukian about this approach[footnoteRef:12], one is directly related to this article: positive-sum, rather than zero-sum in functionality of the goods and services. Here, Cavoukian argues that traditional zero-sum assumptions require unnecessary trade-offs in usage. As argued here, dichotomies like privacy vs. security, or privacy vs. functionality might be considered false dichotomies, and these couples of concepts might as well exist simultaneously. However, the preference of the user as a consumer is what creates the utility in the first place. For example, the user may find more utility in a widely functional design with almost no concern in respect for privacy. On the other hand, visiting back the exchange argument of Consumer Theory, the user somehow has already agreed to have limited control over the product they bought, as the information about the product was available to them to a considerable extent, and they would not have made the voluntary choice if that information did not create utility for them. At this stage, the Privacy by Design Approach might be considered as an approach that undermines personal choice, and tries to make the user better off despite the user herself. In this sense, the rights and the competitive opportunities of the user to transfer the control over their personal data, or the intellectual property they buy or rent including the design of the goods and services- to another party, usually being the producer, is also a form of control over such information. The user still has control, though not absolute, over their personal data, by letting the device, the software or the producer use their data, not transferring their rights on the data itself. They still own the data. The ownership discussion is also popular in academic publications.[footnoteRef:13] Again, academics typically should be able to agree and/or choose to accept that their work will be either placed in the public domain, or owned by themselves. So, according to the concept of competition under the scope of this article, that the user is not perfectly rational, or that the choice is not perfectly free of external factors does not undermine competition, as the existence of competition in opportunities assumes material differences. To ensure theoretically equal opportunities, such differences among any given set of stakeholders must be equal to any other; however, this issue is only secondary to the main argument about opportunities. Again, the user is free to choose from a set of goods and services available to her, but the competitive problem here is that there actually is not an indefinite number of equally available options. [10: Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers. 2012. http://www.ftc.gov/os/2012/03/120326privacyreport.pdf ] [11: European Commission, Proposal for a Regulation of the European Parliament and of the Council on the Protecton of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulatoin). 2012. http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf ] [12: Cavoukian, Ann. Privacy by Design: the 7 Foundational Principles. 2009. http://www.privacybydesign.ca/content/uploads/2009/08/7foundationalprinciples.pdf ] [13: Owen-Smith, Jason, Intellectual Property, Between the Ivory Tower and the Market, Who Owns Academic Work? Battling for Control of Intellectual Property by Corynne McSherry, Science, Vol. 295(5561), 2002, 1840-1841. ]

3.2. Captive Audience DoctrineMonopolistic or oligopolistic control of the market is not always dependent on, or supported by the preferences of the user. The Captive Audience Doctrine recognises an individuals interest in being free from forced communication.[footnoteRef:14] For example, an advertisement on a billboard is not technically forced upon an individual, but if the piece of advertisement is in the form of an audio content inside a moving bus, the individual cannot avoid being subjected to it. That individual is part of a captive audience. The sticky relationships created by monopolised ICT markets are similar in nature. For instance, a user might be consuming services within the Google ecosystem. They might be using e-mail services by Google at work, sharing files via Google Drive with their colleagues, and attending meetings on Google Hangouts. Different factors interfere with their choices here, and these are not usually about personal preferences. The more investment they and their connections make into the same ICT ecosystem, the harder it will be for them to leave this ecosystem.[footnoteRef:15] So, in a way, they are stuck in there, and they cannot choose to avoid communication in that particular ecosystem, which makes them a part of a captive audience. This resembles the concept of network externality that refers to an increase in consumer utility for a product if the number of other people increases. This increase theoretically comes from the reduced cost of using a product after buying it, such as having to put less time and effort in learning such a product, or overall the technological advantages of the community of users and producers as the advancement in technology is intellectually sponsored, in a way, promoted by the larger user base.[footnoteRef:16] However, this concept has two significant differences from the doctrine of captive audience. The sticky relationships between ecosystems and consumers in the example affect the consumer directly, as they are the one stuck in the Google ecosystem. On the network externalities part, it is the producer that loses the limited number of users to whom the product would actually be more beneficial if other buyer did not join in. Conner and Rumelt suggest that the QWERTY keyboard layout is still the most popular layout for production, as almost everyone uses it, despite the fact that many other layouts have proven to be more practical, faster, or less prone to typing mistakes.[footnoteRef:17] The second significant difference is the level of obligation in the continuation of usage. A user who is in a working environment will have too little or no choice in using a different e-mailing service, file-sharing application or a device. For a softer approach, a user will also be much less socially advantaged if they decide to leave Facebook, on which almost all of their friends are. On the network externalities side, same rules may apply for the producer, for example, in deciding to produce a totally different keyboard layout no one has ever heard of. However, while such a thing is almost always a commercial decision for the producer[footnoteRef:18], the consumers choice here is almost always personal. [14: Fallon, Jr., Richard H., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didnt Bark, The Supreme Court Review, Vol. 1994, pp. 1-56.] [15: Baruh, Lemi, Salman, Yusuf, Mobil Mecralarda Veri Gizlilii ve Tasarmla Veri Korunmas Yaklam, Pi: Pazarlama ve letiim Kltr Dergisi, 2014, 16-23.] [16: Conner, Kathleen R., Rumelt, Richard P., Software Piracy: An Analysis of Protection Strategies, Management Science, 1991, 125-139.] [17: Ibid.] [18: The almost here takes into account the hypothetical producer who might want to introduce a new keyboard layout with their lovers name on the top row.]

The example of a workplace might be too complicated here, as organisations can also have commercial preferences. On a personal level, there is still a competitive problem about ICT goods and services. Commercial preferences of organisations might require ICT goods and services to be designed as to hold users responsible for following up on their rights to acquire them, instead of recognising their rights by default.Information ecosystems experienced through digital devices are increasingly inimical to user disengagement both by the nature of their content-delivery architecture, design which, we argue, is meant to prevent the user from switching to a competing brand, and by the nature of the users investment in customization of online and mobile services, which create disincentives for users to repeat the customization process on different platforms.[footnoteRef:19] [19: Baruh, Lemi, Popescu, Mihaela, Trapped in My Mobility: How a Principle of Control over Communicative Interaction Can Guide Privacy by Design in Mobile Ecosystems]

Someone who has invested more in creating a profile on and getting used to Facebook will have more difficulty moving away from it and to another social networking site. The Facebook example itself still does not contradict with the idea of competition in this article, as the user already had preferences and made the choice to invest in that particular platform; however, they did not have enough options to begin with. There were not virtually identical platforms that provide different functions but the same level of opportunities in the market of social networking sites. So, the vacuum of opportunities created by Facebook created websites like Twitter. In the online social networking market, none has a monopoly over opportunity; however, they are materially different, and some people use Facebook, while others use Twitter, or both at the same time like many.3.3. Intellectual Property Rights: Competition vs. InnovationIntellectual property rights are monopolistic by nature. They give the right-holder a monopoly over intellectual content. According to Mellor and Alexander, such rights also contradict with the Treaty of Rome, which requires abolition of national barriers, as they remain territorial in application and differences.[footnoteRef:20] Such an idea of monopoly over content not only damages competition over the content as a good or a service, but also creates different circumstances about the content within different borders, therefore undermining the assumptions of equal opportunities. Different conditions of entry into markets, and different conditions of operation in such markets, while such differences are not proportionate to the overall opportunities of consumers and producers in a hypothetical closed system, do not imply equal opportunities. However, this monopoly does not necessarily have to extend to a market of intellectual content. Two main approaches describe the competitive nature of such rights. By the pure understanding of the Competitive Market Model, the first view is that IP concepts such as patents and copyrights create unfair advantages in a market and harm the competition. On the other hand, such rights encourage innovation by individuals and organisations. [20: Mellor, James, Alexander, Daniel, Intellectual Property, the International and Comparative Law Quarterly, Vol. 39(3), 1990, pp. 695-699.]

By the utility assumption, the artist produced artistic content at least partly because of the utility they get from the intellectual property rights. These rights, in this sense, might also be the only source of their income, networking capabilities, or artistic development. Again, by the exchange argument, the audience would not demand and consume, for example, a book with a price including the royalties, if it did not contribute to their utility; that is, if the book did not present artistic development, or a considerable amount of quality added by the writers incentive to produce content that would bring the writer extra income. Another example is, according to a tear-down report by a research firm, the iPhone 6 costs Apple about $200 to make, which shows a profit margin of approximately 70%.[footnoteRef:21] This issue has many other sides, but Consumer Theory and the Competitive Market Model explain some aspects of this monopoly rent, largely based on the devices popularity. More than two times the profit over cost does not tell us anything good about the absolute competition in that market; however, people are not buying iPhones primarily for things like making calls, sending SMSs, and similar activities, which they could easily do with a $20 device. The iPhone has the added intellectual value to it, and users buy it to increase their utility. The iPhones popularity might be because of its proclaimed unique design, the additional functions it presents, the culture it represents or however significant it is- the innovation it brings into the market. The existence of the iPhone as it is, is by itself a way to increase user demand for the iPhone, and decrease the demand for other brands and models of smartphones, as different models and brands of smartphones constitute substitute goods in the market. The innovation activities performed by Apple definitely create some form of monopoly over some user categories, and decrease the competition by creating a competitive advantage, but not necessarily an unfair one. Apples right to have this competitive advantage encourages others to innovate. The benefit of a governments promise to grant intellectual property rights is the creation of incentives to invest in the research and development of new products.[footnoteRef:22] Such potential monopolization of the market forces the others to step up their game, and create more desirable goods and services for the users. However, according to Schmalensee, especially large patent portfolios owned by corporations might be used to hurt competition and harm other competitors via infringement cases.[footnoteRef:23] On the other hand, this creates another potential of marginal utility for the user, and the user is less likely to demand absolute competition in the market, while they might easily be considering themselves as a part of a different, or cooler community, by taking advantage of their preferences. On the other hand, for example, the same user would be less likely to buy the new iPhone, if it were sold for $10,000 each. With this logic, the way to create a perfectly competitive market of opportunities should come from creating a market that is competitive enough to allow entry and provide the consumer with a sufficient number of choices, and monopolised enough to create a momentum that would allow innovation to constantly reach a point of opportunity that seeks more competition. [21: iPhone 6 Plus: $100 Costlier for Consumers to Buy Just $15.50 More Expensive for Apple to Make, IHS, 2014, http://press.ihs.com/press-release/design-supply-chain/iphone-6-plus-100-costlier-consumers-buy%E2%80%94just-1550-more-expensive- ] [22: Wu, Tim, Intellectual Property, Innovation, and Decentralized Decisions, Virginia Law Review, Vol. 92(1), 2006, pp. 123-147.] [23: Schmalensee, Richard, Standard-Setting, Innovation Specialists and Competition Policy, the Journal of Industrial Economics, Vol. 57(3), 2009, 526-552.]

The competition argument about innovation works the other way, too. The existence of competition forces innovation and the existence of innovation forces counter-innovation for others to compete. Having less competitive advantage creates a need to gain such advantage, which in turn may result in an overall increase in innovation in the market. Competition may increase the incremental profits from innovating, and thereby encourage R&D investments aimed at escaping competition.[footnoteRef:24] In other words, the existence of patents held by Apple is not actually a competitive problem for Samsung or Google, but an innovation opportunity to show how they are better than Apple, just because they are different from Apple. Trying to escape competition might also create a competitive environment for opportunities among different stakeholders, where one invests in innovation to be in the competition, and another invests in innovation to get away from it, locking both kinds of stakeholders in a constant race of innovation. Samsung and Google are, at least currently, big market actors that have the resources to create different solutions in this competition in a limited scope. On the other hand, maybe LG or HTC would find it more difficult to compete with these top few. Further down the scale, it is not easy to provide solutions for the small or mid-sized enterprise owner. On this stage, the consumer can still utilise their options, and can be happy, but they can also be happy with consuming Huawei products that are usually cheaper in price, and can do most of the things a Samsung device can do. Arguably, this price different still does not guarantee that they will have the same marginal utility by using a Huawei product with an Android operating system, as they would have, if they used a Samsung product with the same specifications and operation system. Additionally, trying to balance the marginal utilities of the consumer and the producer requires optimisation, not maximisation of utilities. This optimisation approach ensures that the consumer and the producer cannot be protected in the competition at the same time and on the same level, which leaves the aim to focus on creating a fairly competitive market of opportunities, rather than utilities, and estimate the optimal balance of utilities, rather than optimal utilities for each party on an individual level. [24: Aghion, Phillippe, et al., Competition and Innovation: An Inverted-U Relationship, the Quarterly Journal of Economics, Vol. 120(2), 2005, 701-728.]

4. A Monopoly of StandardsStandardisation of approaches for intellectual property rights might benefit competition in the ICT markets. Different implementations of these monopolising rights bring new restricting mechanisms into otherwise more competitive markets, and lock the different groups of users into different ecosystems. For example, Apple and Microsoft holding on to different digital rights management (DRM) encryption methods usually prevents the user from utilising the same content that is locked in one platform in another platform. Simple commercial decisions like distributing a music album via a BitTorrent Bundle[footnoteRef:25] also locks at least some users out of fully utilising the content they paid for. Any kind of standardisation here, even restrictions within the ecosystems, prevents the content from becoming the users property. For example, the user who buys content via iTunes has the right to use the product without altering it (usus), but they do not have the right to derive profit over it (fructus). Moreover, the user also does not have the full right to abuse the product, or transfer their rights over it to someone else or alter it in ways not intended by the producer (abusus). A standardisation approach that would bring restrictions on producers rights to restrict the users right on the product, would in turn obstruct the voluntary choice of a consumer who might choose to be restricted in exchange of additional functionality. This whole issue prevents any user from actually and completely owning content, by not letting the user surrender their data or partially share their rights on the data with the producer, therefore not having the complete voluntary option to abuse the product. Here the intellectual property rights enable the rights-holder to decide on how the property itself is going to be used by the others, especially those who paid for usage.[footnoteRef:26] By this function of these monopolising rights, the content, or the goods and services in general with ICT natures are already owned by some persons or organisations. In the iTunes example, there are people or organisations that have the full control over the purchased songs. They can profit over them, they can alter them in ways they did not previously intend. So, purchasing songs on such platforms might not pose a significant example of owning songs as pieces of property, but it provides ways to understand how property-like such goods and services are. Considering usus, fructus, and abusus, such goods and services might be considered not property at all. However, from a general perspective, those can also be considered as partly-property. The user does not own the product, but they own the rights to for this example- listen to the product, and they actually bought those rights within the market. A standardisation that aims to achieve price equilibrium, or distribute rights over content in a competitive market, therefore eliminating monopoly or oligopoly in a larger sense, would also be an infringement of the producers rights on the content or the good and services. [25: Thom Yorke released his recent album Tomorrows Modern Boxes as a Torrent Bundle. A Torrent Bundle utilises peer to peer (p2p) sharing applications and allows the content creator to sell his/her own work. http://pitchfork.com/news/56876-thom-yorke-announces-new-album-tomorrows-modern-boxes/ ] [26: Gimbel, Mark, Some Thoughts on the Implications of Trusted Systems for Intellectual Property Law, Stanford Law Review, Vol. 50(5), 1998, pp. 1671-1687.]

Standardization also brings other problems. Setting a basis of standards in intellectual property rights and forcing every agent to comply with those is problematic. Now, different platforms using different DRM protections lock people into different ecosystems, just like selling books from different publishers in different sets of stores. If a regulator decides to enforce the same method of approach for every situation, for example, like the privacy by design approach, this also locks people and firms into something: a monopoly of methods. Any person or organisation that creates content would be locked out of such a market if condoning to technical standardisations is not profitable. Forcing any monopoly or oligopoly in this matter to settle for standardisation is forcing the smaller-scaled organisations more. Larger establishments often tend to be more prepared for the potential changes in the market, and they often have the necessary resources to compensate for such changes. Standardisation for the sake of weakening the monopoly would only make the market harder to enter, therefore strengthening the existing monopolistic or oligopolistic structures.On the other hand, the issue of cross-media ownership is also a concern in this context. Many countries have legislation against owning different kinds of media platforms to some extent. These measures are usually designed to increase competition and challenge conglomeration. On a producer vs. consumer basis, this again is a two-sided issue. Monopolisation of the market is by default considered as a difficulty in entering the market; however, this also has another side. In a monopolised market, monopoly rent is created. The actors on the monopolised side are not the price takers anymore, as they can fix prices on a level that is more than a perfectly competitive price and actually set the prices themselves. This monopolistic advantage usually makes the market harder to enter, as the price setters are usually the ones dominating the market, but in a more competitive market, when compared to a perfect monopoly, the monopoly rent makes the market more attractive to new entries. A first actor earning monopoly rent over the competitive price will encourage a second actor who desires to have a slice of that rent.[footnoteRef:27] Conglomeration may also provide the content creator with additional power over content. People or companies holding intellectual property rights over a particular piece of content would not be able to use it in a different medium in any way they choose by themselves anyway. The creator(s) of Batman would not find it easy to cope up with the general market, and most of their actions about creating anything outside the comic book ecosystem would have legal consequences, as they have already agreed to transfer some of their rights to the publisher. Conglomeration may be profitable for the content creator, and this profitability actually would make the market worth entering. However, not everyone can have a multi-million-dollar idea. [27: Ferguson, James M., Daily Newspaper Advertising Rates, Local Media Cross-Ownership, Newspaper Chains, and Media Competition, Journal of Law and Economics, Vol. 26(3), 1983, pp. 635-654.]

This whole approach is connected to the conditions of exemption in competition law. Most approaches to the concept of competition suggest that competition for the sake of competition itself should not be the aim.[footnoteRef:28] As the emphasis on competition is defined firstly as the protection of the interests of the parties, competition as a blanket requirement may be undermined in certain cases, to pursue the interests of an agent. Turkish Competition Law allows exemption from competition for the following reasons: [28: Seville, Catherine, EC Competition Law. Dominant Position and Exemption, the Cambridge Law Journal, Vol. 51(2), 1992, 206-208.]

a) New improvements and developments in the services related to the production or the distribution of goods, or, achieving economic or technical innovation,b) Interest of the consumer,c) Such an exemption does not remove competition from a substantial portion of the market of concernd) Competition is not limited to an extent that exceeds the amount required to achieve the aims in items (a) and (b).With the addition in 2005, such exemptions from the competition law may be subject to consideration of specific conditions or time limits.[footnoteRef:29] [29: Art. 5, Turkish Competition Law, Law No. 4054.]

As long as the overall competition is achieved in the market, and the rights or interests of the consumer are pursued, there is no legal problem with a limited amount of competition in a certain market. Besides, such exemptions are also subject to some conditions. Not every entrepreneur or content creator has the option to be backed by a conglomerate featuring, for example, a design company for licensing out official t-shirts and toys, a movie production company shooting movies, a publication agency publishing magazines and comic books. Additionally, not everyone has the option to follow a vertical integration on every stage of production due to budget concerns. Like consumers, producers are also limited by their budget constraints. In this sense, in the long run, every actor in the market would have the same possibility and opportunities to become a conglomerate, and take part in different particular markets of their choice at the same time, that is, of course, if they desire so. In a perfectly competitive set of markets, conglomeration would not be a problem, as the conglomerates in particular, single markets would be in the same position as anyone else. In many examples, conglomerates usually speed up the industrial development.[footnoteRef:30] The monopolisation problem here is a problem about monopolisation itself, not particularly and necessarily conglomeration. Here, it just happens to be that conglomerates tend to be richer, and have larger resources to monopolise the markets; but do the consumers really care? On the other hand, problems occur when larger establishments or conglomerates in this case abuse their dominant positions in the markets. In the case of Turkey, Trk Telekom, which also owns different companies in markets like mobile communications, call centre outsourcing and internet services, is the sole provider of landline telephone infrastructures. This gives Trk Telekom an unfair advantage and virtually unlimited power to decide on the price of goods and services they provide. The European Community policy about dominant positions regarding such issues is based on the Treaty of Rome which states such establishments must not be allowed to take one or more dominant positions in the Common Market or a substantial part of it.[footnoteRef:31] In any case, according to the Treaty of Rome, it is not the existence of a dominant position that creates problems and that should be prohibited, but the abuse of such a dominant position.[footnoteRef:32] In comparison to the example of the Turkish Competition Law, mergers, acquisitions or price manipulations by abusing a dominant position is not in the best interest of the public or the market. Such behaviour undermines a substantial proportion of competition in a certain market or sometimes in the economy as a whole, and should be opposed in both price and opportunity approaches in competition. [30: Peng, Mike W., Lee, Seung-Hyun, and Wang, Denis Y. L., What Determines the Scope of the Firm over Time? A Focus on Institutional Relatedness, the Academy of Management Review, Vol. 30(3), 2005, pp. 622-633.] [31: Art. 86, the Treaty of Rome.] [32: George, Ken, Jacquemin, Alexis, Dominant Firms and Mergers, the Economic Journal, Vol. 102(410), 1992, 148-157.]

With the existing to some extent monopolised market structures, the consumer only seeks to raise their utility. Having different versions of things a consumer likes or prefers in a widely spread set of different markets benefits the consumer if the sole concern is the current, short-term, not investigated utility here. On the other hand, in many cases, having similar opportunities in the same preference category or association set might actually lead to a lower utility in the long run, but the consumer is a person whose sole purpose is to increase their utility here and now, in line with their budget constraints. As far as they can get their utility from consuming intellectual property, still not their property, and as long as they are a satisfied consumer, they will not be bothered to care about how conglomeration or cross-media ownership damages the competition. In any case, a Harry Potter novel fan will demand Harry Potter movies, t-shirts and toys, and will get significant utility out of them. Regardless of long term consequences regarding their utility, the consumer interested in intellectual content will find, as described about a form of utility in things they like. The phrase things they like explains how the conglomerates get things done in an exchange scenario, and appeal to current utility perceptions of the users. Conglomeration provides the user with content similar to those they like in different forms.The current industrial context of conglomeration and concentration significantly extends film musics promotional reach and commercial functions. In addition to selling soundtrack CDs, film music functions as a site for launching new artists, providing a renewed platform for singles or leftover tracks, and, most importantly, organising consumption patterns by positioning media products according to the imagined tastes, preferences, and habits of idealized target demographics.[footnoteRef:33] [33: Tompkins, Joseph, Whats the Deal with Soundtrack Albums? Metal Music and the Customized Aesthetics of Contemporary Horror, Cinema Journal, Vol. 49(1), 2009, pp. 65-81.]

However, the focus is on markets where the consumer is happy (or has utility) and nothing else matters, or on attempts to optimise this happiness among a hypothetical set of both consumers and producers? The meaning of competition under the scope of this article contains two assumed rights: the right of the consumer to have as many choices as possible with the same opportunities to choose, and the right of the producer to exist in a market regardless of its size and resources in the first place, and have the opportunities to enter or leave any market, or operate in such markets as fairly proportionate to its financial resources and reach of different markets. Of course, its size and resources will affect how it will survive in competition, but what is discussed here is that the big firm, and the small firm should have the same opportunities and possibilities in entering into and surviving with the markets to ensure producer satisfaction, competition and consumer interest. Aiming to optimise a general set of markets in consumers and producers interests at the same time, it would not be wise to treat the set of consumers as a flock of wild animals in a cruel natural environment that will kill them no matter how they behave in their nature. What producers do or experience also matters, and it especially affects the utility of the consumer in the long run. Commercial decisions made by both the consumers and the producers matter in a larger perspective.5. ConclusionMost measures within intellectual property law, legislative discussions and commercial policy that are aimed at increasing competition in the markets of goods and services might actually fight against competition in the markets of opportunities for both the consumers and the producers. Trying to explain the difference between these two types of competitive markets would be meaningful if one takes the user of ICT technologies and platforms as a consumer. Within the scope of this article, the question is not whether intellectual property rights ultimately create irreversible monopolisation of different markets or not, but it is can we utilise monopolisation in different markets of goods and services in favour of the competition in different markets of opportunities? The term opportunity in question is one of entering a market under different conditions, but the same set of principles that are proportional to the size and power of the entity. The competitive market model still remains a utopia that is used to understand the market dynamics in real life; however, truly competitive markets of opportunities may actually be achieved through non-competitive real-life examples of the markets of goods and services.