FRAND Access to Data: Perspectives from the FRAND Licensing of Standard Essential Patents for the Data Act Proposal and the Digital Markets Act

Abstract

This article evaluates how the principles developed for the fair, reasonable and non-discriminatory (FRAND) licensing of standard essential patents could be applied to FRAND data access as envisaged under the Digital Markets Act and the Data Act and proposes a negotiation scheme to specify the FRAND obligations. Firstly, this article describes the access rights under the Data Act and identifies its four layers to accelerate data sharing (2.). Secondly, the role of FRAND data sharing in the EU Data Package is described, and the specifics of FRAND in the context of the Data Act and the Digital Markets Act are developed (3.). Based thereon, the differences and commonalities of data sharing as envisaged in the Acts to the FRAND licensing of standard-essential patents are described, and a negotiation scheme for FRAND terms under the current Data Act Proposal is developed under adaptation of the principles from Huawei/ZTE (4.).

Keywords: Data Access, Data Sharing, Data Act, FRAND, Digital Markets Act, DMA, SEP, Standard-Essential Patents, Fair, Reasonable, Non-Discriminatory, Huawei/ZTE

JEL Classification: K00, K12, K21, K41