The EU Regulation of the Data-Driven Economy
69 Pages Posted: 21 Apr 2021 Last revised: 22 Jun 2021
Date Written: April 19, 2021
Powerful platforms that ‘hoard’ data in ecosystems, prevents the possibility to access or port data, or restrict interoperability may risk violating competition law. However, the general doctrine for triggering the refusal to supply abuse under Article 102 TFEU sets high thresholds. Data and interoperability should possibly be a more easily available for business users of platforms. Indeed, competition law cannot form the basis for a general right to access data scheme, which is very well needed in the upcoming Internet of Things paradigm.
Perhaps, a sector specific competition regulation, e.g. an ex ante competition rules modelled after the EU proposal for the Digital Markets Act could be the solution. Such regulation could impose new form of violations and stipulate ex ante rules applicable to platforms. Yet, also with such a sector-specific regulation, the system risks be a piece meal, not adapted to the up-coming IoT era, and without a fundamental basis in a rights system available erga omnes for all private parties. It would provide some competition in reference to some sort of purported market failures, yet it is not fit as a system for regulating the digital industry.
As analysed in this Paper, competition law and sector specific regulations, are needed, but still works on a case-by-case basis and cannot empower innovators and creators of data as well as a general rights system for business providers of platforms.
The aim of the Paper is to find a solution for dysfunctional data-driven markets, and the answer provided is that the EU should introduce an access and portability right (APR). The subject-matter of the protection, the right holder, and the scope of the protection, including its exceptions and limitation under intellectual property law and competition law will be discussed. Thus, the thesis of the Paper is to enact something akin to a new property right, not an IPR but an APR (access and portability right).
Keywords: Data Antitrust DMA Competition Law
Suggested Citation: Suggested Citation