Dealing with de facto Powers in an Algorithmic Environment

While over the centuries Intellectual Property has been based on exclusivity, and therefore on the balancing between competing interests provided by legislation, in the last few decades a double metamorphosis of IP appears to have set in which replaces exclusivity with de facto powers of holders of informational resources over the content they control. A rebalancing of the asymmetry of powers thus created via regulation appears necessary but faces several obstacles. Antitrust and access regimes are municipal or, at best, regional, while de facto powers rest on global infrastructures. The paper suggests that, in quest for a rebalancing, we may also look at remedies based on private law and more specifically on the laws of contracts, torts and of collective action, to foster the emergence of countervailing powers and to contrast the exorbitant might of de facto powers, and to overcome their current fragmentation and dispersion.