专家释疑:被反垄断立案调查,知网犯了什么事?

5月13日下午,市场监管总局发布消息称,根据前期核查,依法对知网涉嫌实施垄断行为立案调查。这是2022年平台经济领域的首起公开立案的反垄断案件。知网随后发布公告称,“今天,国家市场监督管理总局对知网涉嫌垄断行为立案调查,我们坚决支持,全力配合”。

公告还表示,“我们将以此次调查为契机,深刻自省,全面自查,彻底整改,依法合规经营,创新发展模式,承担起中国知识基础设施的社会责任”。

专家释疑:被反垄断立案调查,知网犯了什么事?

01

知网犯了什么事?

就在知网被立案调查消息被披露的同时,国务院反垄断委员会专家咨询组成员、中国政法大学教授时建中在《光明日报》发表署名文章,对知网案进行解读。

时建中表示,对知网进行立案调查,是中国反垄断执法机构积极回应社会关切、对平台经济依法实施常态化监管的重要举措,对维护学术文献数据库服务市场的公平竞争、促进知识生产和流动、推动创新发展、保护以作者和读者为主体的消费者利益和社会公共利益具有十分重要的意义。

按照反垄断法规定,垄断行为主要包括三种,即经营者达成垄断协议、经营者滥用市场支配地位,以及具有或者可能具有排除、限制竞争效果的经营者集中。

那么,知网涉及何种垄断行为?

时建中指出,据了解,知网收录的中文学术文献种类与数量、期刊数量以及独家期刊的数量和质量、用户规模及覆盖率、用户依赖程度、市场销售额等均长时间明显处于领先地位,在学术文献收录和服务协议中设置不公平的格式条款,无论是采购学术文献还是销售知识数字化产品的价格几乎不受竞争约束。根据分析,基本可以认定知网具有市场支配地位。

时建中还表示,综合各方面信息,知网与大量期刊、高校签订独家协议,限制它们与其他第三方学术文献数据库服务平台合作,锁定上游优质学术资源,人为制造知识流动壁垒,使其他竞争者难以与其开展公平竞争,影响知识的分享和传播。同时,知网通过低价收录、高价出售的方式获取超高利润,在缺乏正当理由的情况下,连续多年大幅提高数据库价格,增加了用户的负担,损害了消费者利益。知网的上述行为破坏了相关市场的公平竞争秩序,妨碍了学术文献传播和知识分享,损害了知识创新的生态环境。

国务院反垄断委员会专家咨询组成员、上海交通大学特聘教授王先林对财经E法指出,“可以肯定的说,知网涉嫌反垄断法所规制的滥用市场支配地位行为”。他进一步解释,知网很可能涉嫌实施垄断高价(不公平要价或者过高定价)行为,也可能涉嫌实施附加不合理交易条件行为和拒绝交易行为。

在武汉大学法学院教授孙晋看来,“知网的不公平高价是共识度最高的垄断行为表现,其中包括对单位不合理的涨价和读者下载文章不合理的收费行为”。

02

知网案意义几何?

知网被调查是2022年第一起公开立案的平台经济领域反垄断案,也是国家反垄断局成立后首起公开立案调查的平台经济领域反垄断案。如何评价该案件的影响和意义?传递了对平台经济领域进行监管的何种信号?

时建中指出,知网是典型的平台企业,对其立案调查是深入贯彻党中央关于实施常态化监管的具体举措,有利于向市场释放清晰明确的信号,让市场对法治建立起更加可靠、稳定和持续的预期,增强平台企业的自我合规意识,引导和激励平台企业通过技术革新和模式创新开展高水平竞争,不断提升自身核心竞争力。通过实施常态化的反垄断监管,持续净化平台经济领域的竞争环境,优化创新机制,保障平台经济更加健康地高质量发展,更好地发挥平台经济在推动科技创新和繁荣经济、便利人民生活、参与国际竞争等方面的积极作用。

王先林则表示,虽然2021年被称为中国反垄断“大年”,但从知网被调查来看,把2021年称为强化反垄断“元年”更合适,这意味着未来将持续性和常态化地反垄断。今后中国将坚持监管规范和促进发展两手并重、两手都硬的原则,持续强化反垄断,以公平竞争促进高质量发展。平台经济领域的反垄断监管也将进入了常态化、精准化和可预期的阶段。

对于规范学术文献数据库行业健康发展来说,王先林认为,目前的反垄断执法无疑是必要的和及时的,但是从长远来说,还需要其他方面的努力。

王先林具体指出,知网作为重要的国家知识基础设施,负有推动学术传播交流、促进国家科技创新等公益职能,因此可以考虑从政策法律上规定其履行普遍、平等服务等公共性义务,让更多社会公众可以便利、平等、普遍地使用国家知识基础设施,这当然就需要提供相应的资源保障。同时,应对知网实行必要和合理的行业监管措施,比如,将相应的收费纳入国家定价或者国家指导价目录。

"We will take this survey as an opportunity to conduct a profound self-examination, conduct a comprehensive self-examination, thoroughly rectify and reform, operate in accordance with the law, innovate the development model, and assume social responsibility for China's knowledge infrastructure," the notice said.

01

What has been done by Zhi.com?

At the same time as the news that Zhi.com had been placed on file for investigation was disclosed, Shi Jianzhong, a member of the expert advisory group of the Anti-monopoly Commission of the State Council and a professor of China University of political Science and Law, published a signed article in Guangming Daily to interpret the case.

Shi Jianzhong said that the filing and investigation of Zhi.com is an important measure for China's anti-monopoly law enforcement agencies to actively respond to social concerns and regulate the platform economy in accordance with the law. it is of great significance to maintain fair competition in the academic literature database service market, promote knowledge production and flow, promote innovation and development, and protect consumer interests and social and public interests with authors and readers as the main body.

According to the provisions of the anti-monopoly law, there are mainly three kinds of monopoly behavior, namely, operators reaching monopoly agreements, operators abusing their dominant position in the market, and concentration of operators that have or may have the effect of excluding or restricting competition.

So, what kind of monopoly behavior is involved in the knowledge net?

Shi Jianzhong pointed out that it is understood that the types and quantity of Chinese academic literature, the number of journals, the quantity and quality of exclusive journals, the scale and coverage of users, the degree of user dependence and market sales are obviously in the leading position for a long time. Set unfair format terms in academic literature collection and service agreements The price of purchasing academic literature or selling knowledge digital products is hardly restricted by competition. According to the analysis, it can be concluded that the knowledge net has a dominant position in the market.

Shi Jianzhong also said that combining all kinds of information, Zhi.com signed exclusive agreements with a large number of periodicals and universities, restricted their cooperation with other third-party academic literature database service platforms, locked upstream high-quality academic resources, and artificially created barriers to the flow of knowledge, making it difficult for other competitors to compete fairly with them, affecting the sharing and dissemination of knowledge. At the same time, through the way of collecting at a low price and selling at a high price, Zhi.com has made ultra-high profits, and in the absence of legitimate reasons, it has greatly increased the price of the database for many years, increasing the burden on users and harming the interests of consumers. The above behavior of the knowledge network destroys the fair competition order of the relevant markets, hinders the dissemination of academic literature and knowledge sharing, and damages the ecological environment of knowledge innovation.

Wang Xianlin, a member of the expert Advisory Group of the Anti-monopoly Commission of the State Council and a special professor of Shanghai Jiaotong University, pointed out to the Financial and Economic E Law, "it is certain that Zhiwang is suspected of abusing market dominance regulated by the Anti-monopoly Law." He further explained that Zhi.com is likely to be suspected of monopolizing high prices (unfair asking prices or overpricing), as well as imposing unreasonable trading conditions and refusing to trade.

According to Sun Jin, a professor at Wuhan University Law School, "the unfair high price of Zhi.com is the most widely recognized monopolistic behavior, including unreasonable price increases for units and unreasonable charging behavior for readers to download articles."

02

What is the significance of knowing the online case?

The investigation of Zhi.com is the first antitrust case in the field of platform economy that was publicly filed in 2022, and it is also the first antitrust case in the field of platform economy that has been publicly investigated since the establishment of the State Anti-monopoly Bureau. How to evaluate the impact and significance of the case? What kind of signal does it send to regulate the field of platform economy?

Shi Jianzhong pointed out that the knowledge net is a typical platform enterprise, and its filing and investigation is a specific measure of the CPC Central Committee to implement regular supervision, which is conducive to sending a clear and clear signal to the market. let the market establish a more reliable, stable and sustainable expectation of the rule of law, enhance the self-compliance consciousness of platform enterprises, and guide and encourage platform enterprises to carry out high-level competition through technological innovation and mode innovation. Constantly improve their core competitiveness. Through the implementation of regular anti-monopoly supervision, we will continue to purify the competitive environment in the field of the platform economy, optimize the innovation mechanism, and ensure a more healthy and high-quality development of the platform economy, we should give better play to the positive role of the platform economy in promoting scientific and technological innovation and economic prosperity, facilitating people's lives, and participating in international competition.

Wang Xianlin said that although 2021 is called China's anti-monopoly "big year", but from the survey, it is more appropriate to call 2021 as the "first year" of strengthening anti-monopoly, which means that anti-monopoly will be sustained and normal in the future. In the future, China will adhere to the principle of paying equal attention to both supervision and regulation and promoting development, continue to strengthen anti-monopoly, and promote high-quality development through fair competition. The antitrust supervision in the field of platform economy will also enter a stage of normalization, precision and predictability.

For standardizing the healthy development of the academic literature database industry, Wang Xianlin believes that the current anti-monopoly law enforcement is undoubtedly necessary and timely, but in the long run, other efforts are needed.

Wang Xianlin specifically pointed out that the knowledge network, as an important national knowledge infrastructure, has public welfare functions such as promoting academic dissemination and exchanges and promoting national scientific and technological innovation, so it can be considered in terms of policy and law to implement public obligations such as universal and equal services, so that more members of the public can use the national knowledge infrastructure conveniently, equally and universally, which of course requires the provision of corresponding resources. At the same time, we should implement necessary and reasonable industry regulatory measures, such as bringing the corresponding fees into the national pricing or state-guided price catalogue.

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