Sector-Specific (Data-) Access Regimes of Competitors
51 Pages Posted: 4 Jun 2020 Last revised: 7 Aug 2020
Date Written: May 18, 2020
The expected economic and social benefits of data access and sharing are enormous. And yet, particularly in the B2B context, data sharing of privately held data between companies has not taken off at efficient scale. This already led to the adoption of sector specific data governance and access regimes. Two of these regimes are enshrined in the PSD2 that introduced an access to account and a data portability rule for specific account information for third party payment providers. This paper analyses these sector-specific access and portability regimes and identifies regulatory shortcomings that should be addressed and can serve as further guidance for further data access regulation. It first develops regulatory guidelines that build around the multiple regulatory dimensions of data and the potential adverse effects that may be created by too broad data access regimes. In this regard the paper assesses the role of factual data exclusivity for data driven innovation incentives for undertakings, the role of industrial policy driven market regulation within the principle of a free market economy, the impact of data sharing on consumer sovereignty and choice, and ultimately data induced-distortions of competition. It develops the findings by taking recourse to basic IP and information economics and the EU competition law case law pertaining refusal to supply cases, the rise of ‘surveillance capitalism’ and to current competition policy considerations with regard to the envisioned preventive competition control regime tackling data rich ‘undertakings of paramount importance for competition across markets’ in Germany. This is then followed by an analysis of the PSD2 access and portability regimes in light of the regulatory principles.
Keywords: Open Data, data access, data strategy, data driven innovation, AI, economics of factual data exclusivity, competition law, algorithmic consumer, asymmetric regulation, PSD2, access to account rule, Big Tech banking, API standardization, semantic interoperability
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