Thursday, June 17, 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. Moreover, competition law cannot be the basis for a general rights scheme, which is very well needed in the upcoming Internet of Things paradigm. Indeed, competition law does not suffice to overcome the anticompetitive effects of access to data is limited.
Perhaps, a sector specific competition regulation, e.g. an ex ante competition rules modelled after the proposal for a 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 private parties. Indeed, it would provide some competition in reference to several sort of market failures created by platforms, yet it is not fit as a system for regulating the digital industry.
Indeed, as analysed in this Paper, competition law and sector specific regulations, are needed, but still works on a case-by-case basis and cannot be used to empower innovators and creators of data such as a general rights system for business providers of platforms, irrespectively whether these platforms are old Internet based or IoT based. The idea 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. 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. Indeed, the thesis of the Paper is to enact something akin to a new property right, an access and portability right, and the reason for such a legislative effort will be discussed.