Designing Competitive Markets for Industrial Data - Between Propertisation and Access

Abstract

As part of the project to establish a Digital Single Market the European Commission has launched a ‘Free Flow of Data’ initiative. This initiative is meant to enhance the growth potential of the emerging data economy, which is characterised by the digitisation of production (smart factories) and the advent of digitised products such as smart — driverless — cars or smart wearables that will be able to communicate with each other and the environment through the Internet of Things. Furthermore, the enormous amount of data generated and controlled by the industry could serve as a most valuable input for other new data-driven services and for applications in the public interest such as the operation of smart cities, smart and resource-efficient farming or measures to prevent the spread of infectious diseases. Obviously, this new data economy has to rely on the commercialisation of data. But what kind of regulation is needed in order to make the data economy work? Do we need new ownership rights in data? Or should regulation focus on access in order to make data as widely available as possible? The European Commission is currently working on a Communication to provide answers to these questions by January 2017.

This article tries to assist the Commission by working on a pro-competitive framework for issues of both ownership and access. In so doing, this article undertakes two things: first, it analyses to what extent intellectual property laws already provide control over data and then discusses the need and justification for introducing new rules on data ownership. Second, it analyses whether EU competition law already provides remedies to promote access to data and furthermore explores whether and under which conditions introduction of new access regimes would be advisable.

This article is to be considered as on-going research. It is only made available online. A later publication will take into account the Commission Communication expected for January 2017.

Keywords: data ownership, access to data, data sharing, data economy, data-driven economy, Internet of Things, data analytics, database rights, trade secrets protection, EU competition law, refusal to license, essential facilities, data portability