Abstract
The interface between the legal systems triggered by the creation, distribution and consumption of data is difficult to grasp, and this paper therefore tries to dissect this interface by following information, i.e. ‘data’, from its sources, to users and re-users and ultimately to its consumers in an ‘Internet of Things’, or ‘Industrial Internet’, setting. The paper starts with the attempt to identify what legal systems are applicable in this process, with special focus on when competition law may be useful for accessing data. The paper concludes that general competition law may not be readily available for accessing generic (personal or non-personal) data, except for situations in which the data set is indispensable to access an industry or a relevant market, while sector-specific regulations seem to emerge as a tool for accessing data held by competitors and third parties. However, the main issue under general competition law in the data industry, at its current stage of development, is to facilitate the implementation of the Internet of Things.
Dr. Björn Lundqvist, LLM (Michigan) is Associate Professor of EU Law at Stockholm University.
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Notes
- 1.
- 2.
- 3.
- 4.
The Directive on the re-use of public sector information (Directive 2003/98/EC, known as the ‘PSI Directive’) entered into force on 31 December 2003, [2003] OJ L 345/90. It was revised by Directive 2013/37/EU, which entered into force on 17 July 2013, [2013] OJ L 175/1.
- 5.
Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC, [2015] OJ L 123/77.
- 6.
In order to accelerate retail banking innovation and simplify payments, the European Commission is mandating standardized API access across the EU. The initiative is part of the European Commission’s update of the Payment Services Directive (PSD). The revision of the PSD (PSD2) requires banks to provide access to third parties. See Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directive 2002/65/EC, Directive 2009/110/EC and Directive 2013/36/EU and Regulation (EU) No 1093/2010 and repealing Directive 2007/64/EC, [2015] OJ L 337/35. Cf. Commission (2015).
- 7.
There are French national initiatives to open e-platforms for third-party competitors. See e.g. French Senate (2013).
- 8.
Chisholm / Jung (2015), 7-21.
- 9.
ECJ, Huawei Technologies, C-170/13, ECLI:EU:C:2015:477.
- 10.
The definition of big data is vague and lacks precision; see de Mauro / Greco / Grimaldi (2016), 122-135.
- 11.
- 12.
Google is involved in several investigations in several jurisdictions regarding the company’s business conduct; see for example European Commission, Press release (IP/16/1492), Antitrust: Commission sends Statement of Objections to Google on Android operating system and applications, 20 April 2016.
- 13.
Ibid.
- 14.
See the updated PSI Directive, now including museums, libraries and other cultural institutions, and, moreover, the awkward exemption for exclusive licenses for cultural databases. Cf. The Directive on the re-use of public sector information (Directive 2003/98/EC, known as the ‘PSI Directive’), which entered into force on 31 December 2003: [2003] OJ L 345/90. It was revised by Directive 2013/37/EU, which entered into force on 17 July 2013: [2013] OJ L 175/1.
- 15.
Newman (2013), 3 et seq. with references.
- 16.
Ibid. See also e.g. Kerber (2016), 3 et seq.
- 17.
- 18.
- 19.
Regarding the potential benefits of trading data see Lundqvist (2013), 79-81.
- 20.
Östman (2016), 1 et seq.
- 21.
Ibid.
- 22.
Lexinnova (2014), 3 et seq.
- 23.
Östman (2016), 1 et seq.
- 24.
Ibid.
- 25.
Cf. CEN and CENELEC (2016), 1 et seq.
- 26.
- 27.
‘With companies such as Amazon, Google and Microsoft providing machine learning algorithms as part of their cloud computing services, small companies find it increasingly more convenient to have their data processed and mined using external IT infrastructures. Indeed, Cisco forecasts that, by 2019, 86% of all business workload processing will be processed by cloud computing. But, as a greater number of companies become dependent on the infrastructures of a few providers, the latter get access to significant volumes and variety of data that allows them to improve further their own data analysis algorithms. If the trend continues, a competition problem may arise in the future, as new entrants may not be able to build sufficiently powerful IT infrastructures whose analytical software can compete with those of incumbents.’, OECD (2016). Autorité de la Concurrence and Bundeskartellamt (2016), 14.
- 28.
Cf. CEN and CENELEC (2016), 1 et seq.
- 29.
Ibid.
- 30.
For an explanation of patent thickets, see Shapiro (2001), 119.
- 31.
Cf. CEN and CENELEC (2016), 1 et seq.
- 32.
There are several news articles regarding for example the collaboration/license agreements between Microsoft and Facebook regarding the Microsoft Cloud. Also, users of the Microsoft Cloud need to obtain a license from Microsoft, available at: https://www.microsoft.com/en-us/Licensing/product-licensing/innovations-for-the-cloud.aspx.
- 33.
See for example Telecommunications and automotive players form global cross-industry 5G Automotive Association, 27 September 2016, available at: https://www.ericsson.com/en/news/2016/9/telecommunications-and-automotive-players-form-global-cross-industry-5g-automotive-association-
- 34.
- 35.
There are some rights connected to personal data in Articles 18-20 of the General Data Protection Regulation, such as the right to have data corrected, the ‘right to be forgotten’ and data portability. The latter right is limited, however, making it less attractive for consumers to change their social network. Cf. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), [2016] OJ L 119/1.
- 36.
See the interesting conference paper by Ciani (2018).
- 37.
Ibid.
- 38.
Sweden is one of few Member States that have a specific act for the protection trade secrets, while, for example, trade secrets in the UK and in Denmark have been protected under case law and the marketing law (unfair competition law), respectively. In Sweden, collections of customer data, e.g. addresses, have been protected under the Trade Secret Act.
- 39.
See Drexl / Hilty / Desaunettes / Greiner / Kim / Richter / Surblytė / Wiedemann (2016), 6 et seq.
- 40.
Ibid.
- 41.
Ibid.
- 42.
Surblytė (2016), 14 et seq. Cf. Article 20(4) and Recital 63 GDPR.
- 43.
Ibid.
- 44.
The Swedish Trade Council (2016), 1 et seq.
- 45.
Directive No. 96/9/EC of the European Parliament and of the Council, of 11 March 1996 on the legal protection of databases, [1996] OJ L 77/20.
- 46.
See ECJ, Verlag Esterbauer, C-490/14, ECLI:EU:C:2015:735, in reference to maps, where the ECJ states that geographical data presented in maps can be deemed to be ‘independent material’ within the meaning of Article 1(2) of the Database Directive, and it enjoys protection under the Database Directive.
- 47.
Cf. Art 18-20 GDPR. The rights to personal data should however be weighed against the other rights acknowledged by the Charter.
- 48.
In reference to the algorithms normally used to process data in databases. Drexl / Hilty / Desaunettes / Greiner / Kim / Richter / Surblytė / Wiedemann (2016), state: ‘[t]he Max Planck Institute for Innovation and Competition does not see any need to create special legal protection of algorithms used in data processing (e.g. in the context of big-data analysis)’ and continue: ‘concrete computer programs for processing data are already protected by copyright law of the Member States implementing Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs. Nevertheless, this protection covers neither the functionality of a computer program (judgment SAS Institute Inc., C-406/10, ECLI:EU:C:2012:259, paras 39-41) nor the underlying general algorithm (which is understood here as a set of rules to solve a problem step by step, independent of its expression and representation, e.g. the description of the steps to be made for analyzing or filtering data and the criteria to be applied). This is already implied by Recital 11 of the Directive, which clarifies that copyright protection for computer programs should not extend to the “ideas and principles which underlie any element of a program”.’ Some economists have suggested a property solution; cf. Hoofnagle / Whittington (2014), 606-670.
- 49.
Cf. CEN and CENELEC (2016), 3 et seq.
- 50.
See Ciani (2018).
- 51.
Hughes (2016), 1 et seq.
- 52.
ECJ, RTE and ITP / Commission, C-241/91 and C-242/91, ECLI:EU:C:1995:98.
- 53.
ECJ, IMS Health, C-418/01, ECLI:EU:C:2004:257.
- 54.
GC, Microsoft / Commission, T-201/04, ECLI:EU:T:2007:289.
- 55.
The Directive on the re-use of public sector information (Directive 2003/98/EC, known as the ‘PSI Directive’) entered into force on 31 December 2003, [2003] OJ L 345/90. It was revised by Directive 2013/37/EU which entered into force on 17 July 2013, [2013] OJ L 175/1.
- 56.
- 57.
In reference to PSBs, the issue has been whether they can be regarded as undertakings. Firstly, the data holder’s activities with the data need needs to be analyzed in order to establish whether the holder in an undertaking in reference to Article 102 TFEU. Is the activity under scrutiny an economic activity, i.e. a commercial activity, conducted on a market? This may only be established if the end market, where the undertaking is facing its ‘customers’, is scrutinized. Of course, when dealing with private entities such as Google and Facebook etc., establishing whether they are undertakings or not may not cause a concern. However, when dealing with PSBs, it may cause problems. See the Compass case, where, according to the CJEU, an activity consisting in the maintenance and making available to the public of the data collected, whether by a simple search or by means of the supply of print-outs, in accordance with the applicable national legislation, did not constitute an economic activity, since the maintenance of a database containing such data and making that data available to the public are activities which cannot be separated from the public sector activity of collecting data. ECJ, Compass-Datenbank, C-138/11, ECLI:EU:C:2012:449, discussed in Lundqvist (2013), 80 et seq.
- 58.
- 59.
- 60.
- 61.
Sokol / Comerford (2017).
- 62.
Article 29 Working Party (2016), p. 9: ‘[f]or example, a webmail service may allow the creation of a directory of a data subject’s contacts, friends, relatives, family and broader environment. Since these data are relating to, and are created by the identifiable individual that wishes to exercise his right to data portability, data controllers should transmit the entire directory of incoming and outgoing e-mails to the data subject’.
- 63.
ECJ, RTE and ITP/Commission, C-241/91 and C-242/91, ECLI:EU:C:1995:98.
- 64.
An argument frequently posed by the opponents of applying the essential-facilities doctrine is that data cannot be easily monopolized: it is non-rival and, they argue, non-exclusive, since there are no contracts preventing users from sharing their personal information with multiple companies. Furthermore, they argue that there are few entry barriers to new platforms, as data is relatively inexpensive to collect, short-lived and abundant. Balto / Lane (2016), 4 et seq.
- 65.
The Autorité de la Concurrence, France’s competition authority, imposed an interim measure on GDF, ordering that gas supplier to grant its competitors access to some of the data it collected as a provider of regulated offers, in particular consumption data. The aim of this interim measure was to allow all suppliers to have the same level of relevant information to make offers to consumers (no public information or private database exists on households subscribing to gas contracts). French Competition Authority, Decision 14-MC-02 of 09.09.2014. Due to privacy laws, the transmission of GDF data to competitors was conditional to an approval by consumers. A significant share of the consumers did refuse that their data be transferred from GDF to competing operators. The case is discussed in the joint report by the Autorité de la Concurrence and Bundeskartellamt (2016), 20.
- 66.
French Competition Authority, Decision n°13-D-20 of 17.12.2013, confirmed on that points by the court of appeal on 21.05.2015.
- 67.
A similar reasoning has also been used in some merger cases. For instance, in its EDF/Dalkia merger decision: European Commission, Case No. COMP/M. 7137 - EDF/Dalkia en France, 25 June 2014.
- 68.
French Competition Authority, Decision n° 14-D-06, dated 08.07.2014, relative à des pratiques mises en œuvre par la société Cegedim dans le secteur des bases de données d’informations médicales. This decision has been confirmed on appeal but is still pending in front of the Cour de Cassation (the French Supreme Court).
- 69.
ECN Brief (2014).
- 70.
Ibid.
- 71.
Platteau (2015), 1 et seq.
- 72.
- 73.
SCA, The Swedish Patent and Registration Office, Dnr 470/2011, from September 2012.
- 74.
SCA, The Swedish Land Registry, Dnr. 601/2011, from November 2012.
- 75.
Bundeskartellamt, Press release: Bundeskartellamt initiates proceeding against Facebook on suspicion of having abused its market power by infringing data protection rules, 2 March 2016. See also for instance, in Allianz Hungária, the ECJ held that the impairment of objectives pursued by another set of national rules could be taken into account to assess whether there was a restriction of competition (in this instance, by object). Referring to German Competition law, the German Federal Court of Justice has stated that contract terms which are incompatible with the laws regulating general conditions and terms of trade might be an abuse of a dominant position if the use of the terms is based on the company’s market dominance”. ECJ, Allianz Hungária Biztosító and others, C-32/11, ECLI:EU:C:2013:160. See also German Federal Court of Justice (Bundesgerichtshof), VBL-Gegenwert, KZR 61/11 16 November 2013, para. 68.
- 76.
Kerber (2016).
- 77.
EU Commission (1998), 5.
- 78.
Lundqvist (2011), 17.
- 79.
Janssen / Dumortier (2011), 195-195.
- 80.
French Competition Authority, Decision 14-MC-02 of 09.09.2014. The case is discussed in the joint report by the Autorité de la Concurrence and Bundeskartellamt (2016), 20.
- 81.
French Competition Authority, Decision n°13-D-20 of 17.12.2013, confirmed on that points by the Court of appeal on 21.05.2015.
- 82.
Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC, [2015] L 123/77.
- 83.
Ibid.
- 84.
An example of this development could be the ‘5G Automotive Association’, announced on 27 September 2016 by AUDI AG, BMW Group, Daimler AG, Ericsson, Huawei, Intel, Nokia and Qualcomm Incorporated. The association will develop, test and promote communications solutions, support standardization and accelerate commercial availability and global market penetration. The goal is to address society’s connected mobility and road-safety needs with applications such as connected automated driving, ubiquitous access to services and integration in smart cities and intelligent transportation; available at: https://www.ericsson.com/en/news/2016/9/telecommunications-and-automotive-players-form-global-cross-industry-5g-automotive-association-.
- 85.
See Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, [2015] OJ 337/35. Cf. Commission (2015).
- 86.
Bundeskartellamt (2016).
- 87.
ECJ, Asnef-Equifax, C-238/05, ECLI:EU:C:2006:734, para. 63.
- 88.
European Commission, Case No. COMP/M.7217,Facebook/WhatsApp, 3 October 2014, para. 164.
- 89.
Not alone of this opinion: Grunes / Stucke (2015), 2 et seq.
- 90.
Ezrachi / Stucke (2016).
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Lundqvist, B. (2018). Big Data, Open Data, Privacy Regulations, Intellectual Property and Competition Law in an Internet-of-Things World: The Issue of Accessing Data. In: Bakhoum, M., Conde Gallego, B., Mackenrodt, MO., Surblytė-Namavičienė, G. (eds) Personal Data in Competition, Consumer Protection and Intellectual Property Law. MPI Studies on Intellectual Property and Competition Law, vol 28. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-57646-5_8
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