Ebook retailer Kobo is challenging a settlement entered into by the Competition Bureau with ebook publishers. The settlement has been stayed pending this challenge. Kobo‘s challenge may have major implications for competition law enforcement in Canada. Kobo‘s case also highlights a little-known area of risk that Canadian businesses face.
Canadians have taken to ebooks and ebook readers. They have many advantages, such as portability and the ability to buy and immediately download new books from nearly anywhere, at any time. But ebook customers cannot have failed to notice that ebooks are not much cheaper paperback books or sometimes even harcover books, even though the ebookscost less to produce and distribute than physical books.
Competition authorities in Canada, the United States, and Europe noticed this as well and investigated. They found that the replacement of a traditional wholesale price model with an “agency” model, where the publisher sets the retail price and charges a percentage of that price as the wholesale price, led to higher prices for ebooks.
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In Canada, ebook retailer Kobo is challenging the settlement. Kobo claims that the settlement changes the contracts that underpin its business and profitability. The Competition Tribunal has stayed the Canadian ebooks settlement pending Kobo’s challenge.
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Under the wholesale model, the publisher sells the book to the retailer, who then sells it for whatever price it wants. When ebooks were first introduced, publishers typically set wholesale prices about 20% lower than for physical books. Amazon then started selling ebooks for $9.99. Publishers saw this as too low, and they said so. Some of them began to act in concert to protect the higher prices they charged for hardcover books, notably by releasing books in hardcover before releasing the ebook version, a tactic called “windowing”.
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Even before the case against Apple went to trial in the US, the publishers reached settlements with US and EU competition authorities. Apple settled in the EU but not in the US.
The settlements, broadly speaking, were substantially the same on both sides of the Atlantic: the publishers agreed to end retail price restrictions and MFN clauses.
The Canadian settlement is also similar. The consent agreement prohibits the publishers from imposing retail prices on retailers. Publishers can still set suggested retail prices, but, with one narrow exception, cannot prevent retailers from selling below the suggested retail prices.
A key feature of the ebooks case is that it involves both horizontal and vertical restraints. The horizontal restraint is the agreement between ebook publishers to impose vertical restraints on retailers. The vertical restraints prevent price competition by retailers, a practice known as price maintenance. The ebooks settlements attack the vertical restraints that flow from the horizontal agreement. The anti-competitive conduct that provides the basis for the enforcement action appears to be the horizontal agreement, however.
The Canadian ebooks settlement is based on an anti-competitive horizontal agreement. The settlement recites an allegation by the Competition Bureau that ebook publishers entered into an agreement that lessened or prevented competition substantially in the market for ebooks.
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Kobo argues that its contracts with the four publishers, Hachette Book Group, HarperCollins, Macmillan, and Simon & Schuster, will be fundamentally altered or terminated because of the settlement, and that it will lose money. Kobo claims that a similar settlement in the US led it to close a US office and refocus on other markets. Kobo claims that it also led another ebook company, Sony, to exit the market, and caused Barnes & Nobles’ “NOOK” ebook division to become unprofitable.
The settlements led publishers to replace the agency model with the so-called “agency lite” model. The agency lite model is essentially the same as the agency model with most of the restrictions on retail price reductions removed. Thus publishers continue to establish a retail price, and are paid a wholesale price based on a discount from the retail price. The key difference is that retailers are free to price below the suggested retail price. The wholesale price does not change, however, even if retailers decrease retail prices. This, Kobo complains, means that retailers bear the losses associated with competition in the marketplace, while publishers’ margins remain protected.
Kobo says that unlike in the US, the shift to agency in Canada was not driven by a conspiracy among publishers, but rather, by Kobo itself in its negotiations with publishers.