Recently, CNKI was officially investigated by the national anti-monopoly regulatory authority. When the news came out, the public opinion of all parties was jubilant. It was said that “the world has known CNKI for a long time!”

Among the cases related to HowNet, the Chinese Academy of Sciences stopped HowNet due to a subscription fee of 10 million yuan and the Hangzhou Intermediate Court accepted the civil lawsuit of “HowNet abuse of market dominance” filed by a distinguished professor of a university.

Identifying the dominant position of the operator in the relevant market is the prerequisite for identifying whether it has “abused the dominant position in the market”. HowNet is a special combination of national knowledge infrastructure+public goods+scientific research achievements+Internet platform. At the beginning, it was a strong combination of national interests and individual insight. First mover advantage and hard work complement each other. Up to now, its market dominance in the same industry is beyond doubt.

Therefore, compared with other similar cases, it will be easier to identify the dominant position of HowNet in the relevant market. From the appeal of the Chinese Academy of Sciences and Professor Guo of Hangzhou, we will try to make a simple analysis on whether HowNet constitutes an abuse of the dominant position in the market.

The Chinese Academy of Sciences stopped HowNet due to a subscription fee of 10 million yuan

The Chinese Academy of Sciences is just a typical representative of many users of HowNet, but from the perspective of renewal fees, it forms a service relationship with HowNet. The first paragraph of Article 17 of the Anti monopoly Law of China prohibits operators with a dominant market position from selling goods at an unfair high price or buying goods at an unfair low price, where goods include services. So, does this rising renewal fee violate this prohibition?

According to the relevant laws and regulations of our country, the determination of “unfair high price” or “unfair” low price will generally be considered from the following aspects: (1) price comparison with other operators; (2) Compared with the price of HowNet in other same or similar markets, (3) whether the increase of the renewal fee of HowNet exceeds the normal range when the cost is stable; (4) Whether the price increase of subscription renewal fee of HowNet is significantly higher than the cost increase, etc. In addition, we should also consider the substitutability of other same or similar operators, the control ability of the source of HowNet’s academic works in the whole relevant market, and the dependence of users on HowNet.

Obviously, whether the price is fair or not is a very complex and highly professional issue. If we want to judge whether the price of the control and transaction object constitutes a prohibited act under the first paragraph of Article 17 of the Anti monopoly Law, we believe that the national anti-monopoly law enforcement agency will make a judgment after listening to the professional analysis of the professional agencies.

Anti monopoly civil lawsuit filed due to limited individual duplicate checking service

One of the reasons why a professor in Hangzhou sued HowNet was that he refused to open the service of academic misconduct detection system to individual users without proper reasons; The second is to limit the use of academic misconduct detection system services by unit personnel through obviously unreasonable contract terms to infringe their legitimate rights and interests. It is a well-known fact that HowNet never sells academic misconduct detection services to any individual. Is this illegal?

The third paragraph of Article 17 of the Anti monopoly Law of China prohibits operators with dominant market positions from refusing to trade with the counterpart without justified reasons.

Therefore, when hearing this case, the Hangzhou Intermediate People’s Court should first confirm whether a professor in Hangzhou is a trading counterpart in the sense of the Antitrust Law of HowNet? Because, as an independent market subject, HowNet has the right to choose its trading partner.

Article 16 of the Interim Provisions on the Prohibition of Abusing Market Dominant Status stipulates that operators with market dominant status are prohibited from refusing to transact with the trading counterpart without justified reasons by the following ways: (1) substantially reducing the existing trading volume with the trading counterpart; (2) Delay and interrupt the existing transaction with the counterpart; (3) Refusing to conduct new transactions with the counterpart; (4) Setting restrictive conditions to make it difficult for the trading counterpart to trade with it; (5) Refuse the trading counterpart to use its necessary equipment under reasonable conditions in production and operation activities.

Secondly, if it is confirmed that a professor is a trading partner in the sense of the Antitrust Law of HowNet, then it is also necessary to consider whether there is a legitimate reason for HowNet to reject the transaction?

In March 2019, the official announcement released by HowNet explained that the reason why the duplication checking service is not open to individuals is that the academic misconduct detection system is a serious management tool, which can only be used for the business management process of institutions. Therefore, this system has always only provided services to institutions, and only allowed to detect the papers of the unit.

In this case, individuals are not unable to check duplicates, but need to check duplicates through relevant institutions. The specific methods of duplicate checking, such as free duplicate checking or fee duplicate checking, are first subject to the agreement between HowNet and institutions, and also subject to the provisions or agreements of various institutions. Therefore, a deeper question may arise: Is it the rights and interests of individual users infringed by relevant institutions or HowNet?

The author believes that whether the reason why HowNet does not open the duplication checking service to individual users is justified requires a more detailed review of the real intention of HowNet’s service arrangement, as well as a comprehensive consideration of the national interests, the promotion of cultural and technological development, and the interests of university research institutions, academic journals, individuals, HowNet and other parties. After all, academic duplication checking is not a simple consumer rights protection issue.

Therefore, no matter how the Hangzhou Intermediate Court finally adjudicates, the author hopes that this anti-monopoly investigation can help all the pending anti-monopoly disputes around HowNet have a relatively breakthrough answer in administrative law enforcement and civil litigation.

Lawyer Wang Fen

Graduated from the Northwest Institute of Political Science and Law, Economic Law Department, with nearly 10 years of legal service experience, and high customer satisfaction;

Advocate that the law should serve the business, be able to go deep into the frontline of the consulting unit, and provide the consulting unit with operable and valuable services that can pre control risks;

It can independently research and develop topics and provide daily legal training for enterprises, including labor law, contract law, shareholder disputes, intellectual property rights and competition law.