Competition Law in Academic Journal Access Bundling in Morocco

1. Introduction

Academic journal access bundling refers to the practice whereby publishers, database operators, or digital content providers sell multiple scholarly journals, electronic books, citation databases, and research tools together under a single subscription or licensing agreement. Universities, research institutions, libraries, and public research bodies may be required to purchase a large package rather than select individual journals.

In Morocco, this issue is relevant to competition law because universities and research institutions need access to international scholarly publications, while publishers may control important intellectual property, digital platforms, subscription systems, and specialized scientific content.

The central competition-law question is whether bundling improves access and reduces costs or unfairly restricts competition by tying valuable journals to less desirable products, foreclosing rival databases, or exploiting institutional dependence.

The principal Moroccan framework is Law No. 104-12 on freedom of prices and competition, as amended, together with Law No. 20-13 on the Competition Council, as amended. The analysis must also account for intellectual property rights, contractual freedom, public procurement rules where applicable, and the practical realities of digital publishing.

A critical qualification is that the cases discussed below are mainly comparative precedents from the European Union and other jurisdictions. They help explain the legal principles relevant to Morocco but should not be represented as Moroccan judgments specifically concerning academic journal bundling.

2. Legal framework in Morocco

A. Law No. 104-12: Freedom of prices and competition

Moroccan competition law provides the main framework for assessing restrictive agreements, abuse of dominance, and transactions that may undermine effective competition.

Three issues are particularly important.

1. Anti-competitive agreements

An agreement between publishers, distributors, or database operators may raise concerns if it restricts competition through coordinated pricing, market allocation, exclusionary licensing, or restrictions on institutional purchasing.

Examples include:

Competing publishers agreeing not to offer journals individually.

Publishers coordinating subscription prices or discounts.

Exclusive distribution agreements preventing competing databases from obtaining important journal content.

Contractual restrictions that discourage universities from switching providers.

A publisher independently deciding to offer a package is not, by itself, proof of an anti-competitive agreement. The legal analysis must identify the relevant conduct, the competitive effects, and the applicable statutory requirements.

2. Abuse of a dominant position

Bundling becomes more concerning where a publisher or platform has substantial market power and uses that position to disadvantage competitors or exploit dependent customers.

Potential indicators include:

Control of indispensable or highly demanded journals.

Strong network effects arising from citation databases, indexing, and research workflows.

High switching costs caused by archival access, institutional authentication, and integrated search tools.

Discounts conditional on purchasing a broad portfolio of products.

Refusal to license content on commercially reasonable terms, where the applicable legal conditions for intervention are met.

Dominance alone is not unlawful. The issue is whether the conduct constitutes an abuse under the applicable law.

3. Competition Council oversight

Morocco's Competition Council has a role in investigating anti-competitive practices and reviewing relevant transactions under the applicable legislation. A complaint concerning journal bundling would need to establish the relevant market, the conduct in question, and its likely or actual effects on competition.

B. Relevant market definition

The market should not automatically be defined as the entire academic publishing sector.

Depending on the evidence, relevant markets might include:

Electronic access to scientific journals in a particular discipline.

Specialized legal, medical, engineering, or scientific databases.

Citation and bibliometric services.

Digital journal archives and backfiles.

Institutional research-information platforms.

Distribution or licensing services for academic publications.

The assessment should consider whether libraries can realistically substitute one publisher's content for another's, whether researchers regard particular journals as essential, and whether alternative databases provide comparable coverage.

C. Intellectual property and competition

Copyright and licensing rights allow publishers to control the use and distribution of protected works within the scope of their rights. However, intellectual property does not automatically exempt every licensing practice from competition scrutiny.

The appropriate balance is between rewarding scholarly publishing and preventing the strategic use of exclusive rights or contractual conditions to suppress competition.

3. Forms of academic journal access bundling

A. Portfolio bundling

A publisher offers hundreds or thousands of journals under one institutional subscription. The package may simplify procurement, but smaller publishers can struggle to compete if universities allocate most of their budgets to a single large portfolio.

B. Tying of research services

Access to journals is conditioned on purchasing analytics, citation tracking, research-management tools, or other services. Competition concerns arise when a powerful provider uses control over one product to gain an advantage in another.

C. All-or-nothing licensing

Institutions must purchase an entire package even when they need only a small portion of its contents. This can create disproportionate expenditure, particularly for smaller universities and specialized research institutions.

D. Bundling with restrictive licensing

Long-term contracts, restrictive cancellation clauses, limited archival rights, or conditions restricting alternative subscriptions may make it harder for institutions to switch suppliers.

These practices are not automatically unlawful. Their legality depends on market power, contractual structure, competitive effects, objective justifications, and the relevant statutory requirements.

4. Six important case laws

The following six cases provide a comparative legal framework for evaluating academic journal bundling in Morocco. They are not presented as judgments arising from Moroccan academic publishing disputes.

Case 1: IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG (2004)

Citation: Case C-418/01, Court of Justice of the European Union.

Facts: IMS Health held rights over a particular data structure used in pharmaceutical sales information. A competitor sought access to that structure to provide competing services.

Legal principle: Refusal to license intellectual property may, in exceptional circumstances, constitute an abuse of dominance where the protected input is indispensable, the refusal prevents the emergence of a new product for which there is potential demand, competition is excluded, and the refusal lacks objective justification.

Application to journal bundling: Suppose a dominant scholarly database controls an essential journal archive and refuses access to competing platforms while conditioning institutional access on the purchase of a wider portfolio. The IMS Health reasoning could help assess whether the refusal or licensing conditions improperly exclude competitors.

However, the mere popularity of a journal or the commercial desirability of a publisher's archive does not establish indispensability.

Significance for Morocco: The case helps distinguish legitimate intellectual property protection from potentially abusive licensing conduct.

Case 2: Microsoft Corp. v Commission (2007)

Citation: Case T-201/04, General Court of the European Union.

Facts: Microsoft challenged a European Commission decision concerning, among other matters, the tying of Windows Media Player to its Windows operating system.

Legal principle: Tying by a dominant undertaking can restrict competition in a neighbouring market, particularly when the strength of the dominant product gives the tied product a distribution advantage unavailable to competitors.

Application to journal bundling: A dominant academic information platform might combine journal access with a proprietary citation-analysis or research-management service. If customers cannot obtain the core journal service without taking the additional service, competing providers of research tools may be disadvantaged.

The assessment must consider market power, foreclosure, effects on consumer choice, and any objective justification.

Significance for Morocco: The case illustrates why competition analysis must examine not only the primary journal market but also adjacent research services.

Case 3: Hilti AG v Commission (1991)

Citation: Case T-30/89, General Court of the European Communities.

Facts: Hilti's conduct in the market for nail guns and related consumables raised competition concerns involving its dominant position and practices affecting complementary products.

Legal principle: A dominant undertaking cannot automatically use its position in one product market to impose restrictions that disadvantage independent suppliers of complementary products.

Application to journal bundling: Journals and research tools can function as complementary products. A publisher with a strong journal portfolio might condition discounts on the adoption of its own indexing, analytics, or discovery tools, making independent suppliers less competitive.

The analogy is strongest where the products are complementary and the conduct forecloses rival suppliers; it is not a direct ruling on academic publishing.

Significance for Morocco: The case supports scrutiny of commercial arrangements that extend market power from a core product to complementary services.

Case 4: Tetra Pak International SA v Commission (1996)

Citation: Case C-333/94 P, Court of Justice of the European Communities.

Facts: The dispute concerned Tetra Pak's conduct across markets involving packaging machinery and cartons, including restrictions affecting related products and services.

Legal principle: A dominant undertaking's conduct can raise competition concerns across closely connected markets. The relationship between the markets and the nature of the conduct matter when determining whether abuse has occurred.

Application to journal bundling: A publisher may be powerful in a specialized journal market and also supply citation databases, archival access, and research analytics. A court or competition authority should examine whether restrictive contractual conditions in one market distort competition in connected markets.

Significance for Morocco: The case provides a framework for examining portfolio strategies that link several connected research products.

Case 5: Oscar Bronner GmbH & Co. KG v Mediaprint (1998)

Citation: Case C-7/97, Court of Justice of the European Communities.

Facts: A newspaper publisher sought access to a competitor's nationwide home-delivery distribution system.

Legal principle: A refusal to provide access to infrastructure controlled by a dominant firm is not automatically abusive. The indispensability threshold is demanding, and the analysis considers whether viable alternatives exist and whether refusal would eliminate effective competition.

Application to journal bundling: A publisher's exclusive archive, journal collection, or authentication infrastructure should not be classified as an essential facility simply because access would benefit competitors.

An assessment should establish whether rival content or distribution channels are realistic substitutes, whether duplication is feasible, and whether the refusal threatens effective competition.

Significance for Morocco: Bronner helps prevent competition law from becoming a general obligation to share every valuable copyrighted resource.

Case 6: United Brands Company v Commission (1978)

Citation: Case 27/76, Court of Justice of the European Communities.

Facts: The case concerned United Brands' market position and conduct in the banana trade, including discriminatory and restrictive commercial practices.

Legal principle: A dominant undertaking may abuse its position through certain discriminatory or restrictive conditions. The case also remains important in the assessment of dominance and market power.

Application to journal bundling: A dominant academic publisher could potentially raise concerns if it applies materially different licensing conditions to comparable institutions without an objective justification, or imposes unfair conditions on customers that have few realistic alternatives.

Differences in price are not inherently unlawful. Volume, usage, geographical coverage, licensing costs, and other legitimate commercial factors may justify different terms.

Significance for Morocco: The case helps frame questions of unequal treatment, commercial dependence, and abuse in institutional licensing.

5. Comparative case-law summary

These precedents are persuasive comparative materials, not substitutes for applying Moroccan legislation and relevant Moroccan decisions.

6. Competition-law issues specific to Morocco

A. Market power of international publishers

Moroccan universities may rely on international publishers for specialized medical, scientific, legal, engineering, and humanities research. Certain journals can be difficult to replace because of their reputation, editorial specialization, citation history, or importance for accreditation and research evaluation.

A sound competition assessment should investigate:

Whether other publishers provide credible substitutes.

Whether institutions can purchase individual journals instead of portfolios.

Whether open-access versions or repositories offer practical alternatives.

Whether the provider can impose significant price increases without losing customers.

Whether institutions face substantial costs when switching platforms.

Market power must be established through evidence rather than inferred solely from a publisher's size or reputation.

B. Effects on universities and research institutions

Bundling may create both benefits and risks.

Potential benefits

Lower administrative and transaction costs.

Broader access to research across disciplines.

Simplified licensing and authentication.

Discounts that would be unavailable for separate subscriptions.

Better continuity of access to current and archived publications.

Potential harms

Payment for journals that researchers rarely use.

Reduced budgets for independent publishers and specialist collections.

Higher switching costs and institutional dependence.

Reduced incentives for competing databases to innovate.

Less flexibility for universities with different research priorities.

The relevant question is whether the benefits are genuine, passed on to institutions or users, and sufficient to justify any restrictions on competition.

C. Public procurement and institutional purchasing

Where Moroccan public universities or public research institutions are subject to public procurement rules, the purchasing process may raise separate issues of transparency, equal treatment, competition among bidders, and value for money.

Institutions can consider joint procurement, pooled subscriptions, or framework agreements to strengthen their negotiating position. Such cooperation should be structured carefully so that it does not facilitate coordination among competing publishers or disclose commercially sensitive information unnecessarily.

D. Territorial reach

Law No. 104-12 applies to conduct that has the relevant effect on competition in the Moroccan market, even where the undertaking is established abroad. Therefore, an international publisher's headquarters outside Morocco would not, by itself, exclude Moroccan competition-law scrutiny. The jurisdictional and evidential requirements would still need to be satisfied.

E. Intellectual property and open access

Open-access publishing, institutional repositories, and alternative scholarly platforms may reduce dependence on commercial bundles. However, open access does not automatically eliminate market power: publishers may still control prestigious titles, editorial services, citation infrastructure, and proprietary analytical tools.

A balanced approach should protect legitimate copyright and publishing investment while preserving competitive routes to scholarly dissemination.

7. Hypothetical example: A Moroccan university subscription

Assume a large international publisher offers a Moroccan university a package of 1,000 journals and requires the university to purchase a proprietary citation-analysis platform as part of the same agreement.

The university needs only 250 journals and already uses a competing analytics service. The publisher refuses to offer a narrower subscription at a commercially reasonable price.

The legal assessment would proceed as follows:

1. Define the markets. Determine whether journal access and citation analytics are separate markets, and whether individual disciplines constitute narrower markets.

2. Establish market power. Examine the publisher's market shares, journal importance, alternative sources, customer dependence, and barriers to entry.

3. Identify the conduct. Determine whether the arrangement is genuine product bundling, contractual tying, a volume discount, or simply an integrated package.

4. Assess foreclosure. Investigate whether the arrangement materially disadvantages competing analytics providers or rival publishers and limits institutional choice.

5. Evaluate efficiencies. Consider whether joint licensing reduces costs, improves access, or generates other verifiable benefits that could not reasonably be achieved through less restrictive arrangements.

6. Consider proportionate remedies. Depending on the evidence, possible measures could include optional purchase of analytics, unbundled journal access, transparent pricing, reasonable contract durations, or improved switching and archival provisions.

Legal conclusion: The arrangement is not automatically unlawful. The strongest case for intervention would arise if the publisher possesses substantial market power and uses the bundle to foreclose effective competition without adequate objective justification.

8. Enforcement and remedies

If evidence indicates a violation, a complaint may be brought before the Moroccan Competition Council under the applicable procedural rules. The complainant should preserve subscription agreements, price schedules, renewal correspondence, usage statistics, tender documents, and evidence of rejected alternative offers.

Potential remedies, subject to the Council's statutory powers and the circumstances, include:

Ceasing unlawful tying or exclusionary contractual conditions.

Revising restrictive licensing terms.

Removing unjustified exclusivity.

Improving transparency in subscription pricing.

Allowing separate purchase of products where necessary and proportionate.

Applying appropriate sanctions where the statutory conditions are met.

Moroccan Law No. 104-12, as amended, supplies the substantive competition framework, while Law No. 20-13, as amended, governs the Competition Council's institutional framework. The Council's published guidance on Article 37 also illustrates the availability of a transaction procedure in qualifying cases.

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9. Recommendations for Moroccan competition policy

A balanced policy should focus on evidence-based enforcement rather than treating all academic bundles as harmful.

1. Improve transparency: Encourage clear disclosure of bundle contents, renewal terms, usage data, price changes, and cancellation rights.

2. Assess competition effects: Prioritize cases involving substantial market power, demonstrable foreclosure, and significant institutional dependence.

3. Support collective negotiation: Help eligible institutions develop lawful joint procurement and coordinated licensing strategies.

4. Encourage alternative access: Promote open-access repositories, interoperable research infrastructure, and competitive digital publishing models.

5. Protect research continuity: Consider reasonable archival-access and portability arrangements when institutions change suppliers.

6. Apply proportionate remedies: Preserve legitimate efficiencies from package pricing while addressing restrictions that materially undermine competition.

7. Develop sector-specific evidence: Collect data on subscription expenditure, price evolution, journal usage, cancellation rates, and the availability of substitutes in Morocco.

10. Conclusion

Competition law in academic journal access bundling in Morocco requires a careful balance between intellectual property, efficient institutional purchasing, and effective competition. Portfolio subscriptions can expand scholarly access and reduce procurement costs, but restrictive bundles may also entrench dominant suppliers, increase switching costs, and foreclose competing publishers or research-service providers.

Moroccan Law No. 104-12 is the principal substantive starting point. The six comparative cases—IMS Health, Microsoft, Hilti, Tetra Pak II, Bronner, and United Brands—provide useful analytical principles for assessing intellectual property licensing, tying, connected markets, refusal to deal, and unfair commercial conditions.