A Legal Framework for Access to Data – A Competition Policy Perspective

German Federal Ministry of Justice and Consumer Protection / Max Planck Institute for Innovation and Competition (eds.): Data Access, Consumer Interests and Public Welfare, 2021, p. 103-153.

52 Pages Posted: 6 Nov 2020 Last revised: 12 Oct 2022

See all articles by Heike Schweitzer

Heike Schweitzer

Humboldt University of Berlin - Faculty of Law

Robert Welker

Humboldt University of Berlin - Faculty of Law

Date Written: September 15, 2020

Abstract

The paper strives to systematise the debate on access to data from a competition policy angle. At the outset, two general policy approaches to access to data are distinguished: a “private control of data” approach versus an “open access” approach. We argue that, when it comes to private sector data, the “private control of data” approach is preferable. According to this approach, the “whether” and “how” of data access should generally be left to the market. However, public intervention can be justified by significant market failures. We discuss the presence of such market failures and the policy responses, including, in particular, competition policy responses, with a view to three different data access scenarios: access to data by co-generators of usage data (Scenario 1); requests for access to bundled or aggregated usage data by third parties vis-à-vis a service or product provider who controls such datasets, with the goal to enter complementary markets (Scenario 2); requests by firms to access the large usage data troves of the Big Tech online platforms for innovative purposes (Scenario 3). On this basis we develop recommendations for data access policies.

Keywords: data access; data allocation; data sharing; industrial data; personal data; competition law; competition policy; innovation policy; market failure; open access; regulation; PSD2; open banking; smart meter; connected car; essential facilities doctrine; relational power; data unbundling; aftermarkets

JEL Classification: K21, K24

Suggested Citation

Schweitzer, Heike and Welker, Robert, A Legal Framework for Access to Data – A Competition Policy Perspective (September 15, 2020). German Federal Ministry of Justice and Consumer Protection / Max Planck Institute for Innovation and Competition (eds.): Data Access, Consumer Interests and Public Welfare, 2021, p. 103-153., Available at SSRN: https://ssrn.com/abstract=3693874 or http://dx.doi.org/10.2139/ssrn.3693874

Heike Schweitzer (Contact Author)

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

Robert Welker

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

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