Standardization for the Digital Economy - The Issue of Interoperability and Access Under Competition Law

Abstract

This article discusses several aspects of the Digital Economy. Firstly, the Intellectual Property landscape of the soon to come Internet of Things is drawn up, discussed and scrutinized, and the current issue whether non-personal digital data should become a property right, in-itself, is analysed. Secondly, in light of the IP landscape, “pictured” in the first part of the article, the current standardisation efforts for the Digital Economy are discussed, e.g. what are the challenges, and how much should be standardized and how lenient should competition authorities treat pre-standard consortia. Thirdly, current and future competition law issues for the Digital Economy are identified, and lastly the unworkable dichotomy between personal data, non-personal data is criticized. The paper conclude that general competition law may not be readily available for accessing generic (personal or non-personal) Data, except for the situation where the Data set is indispensable to access an industry or a relevant market; while sector specific regulations seem to emerge as a tool for accessing Data held by competitors, third parties and possibly competing ecosystems. However, the main issue under general competition law in the Data industry, at its current stage of development, is to create a levelled playing field by trying to facilitate the implementation of Internet of Things; thus, competition authorities should be cautious about the current consortia driven standard-setting movement in the Digital Economy, when the technology being standardized is not infrastructure type, but rather of upper layer substitute data interoperability technical solutions.

Keywords: Internet of Things, Industrial Internet, Standardization, SEP, Competition Law, Antitrust, Big Data, Open Data, Intellectual Property Law, Privacy, Data Protection, PSI, Platforms, Ecosystem