Demystifying the Role of Data Interoperability in the Access and Sharing Debate Journal of Intellectual Property, Information Technology and Electronic Commerce Law 11, 3 (2020), 252 - 273 (
In the current data access and sharing debate, data interoperability is widely proclaimed as being key for efficiently reaping the economic welfare enhancing effects of further data re-use. Although we agree, the role data interoperability plays for data access cannot be straightforwardly answered. First, data interoperability, as a technical mechanism, is an inherent part of some regulated data access rights. In these particular cases, data interoperability is the key enabler for efficient (re-)use of data. This example shows the relevance of addressing data interoperability within the corresponding obligation of the access right. It also reveals that interoperability becomes key from a market failure perspective if the failure stems from a lack of efficient data use or potential lock-ins. Another example where data interoperability goes hand in hand with data access regimes is digital platforms. However, digital markets have a tendency to “tipping”. Such a tendency is not natural but induced by individual practices, e.g., the obstruction to interoperability. To this end, subjecting dominant online platform companies to additional interoperability obligations and stricter monitoring could be an effective approach to control the abuse of market power. Likewise, the current EC’s ambition to pave the way towards European digital sovereignty highly depends on the design of a data interoperability policy within the context of access to and re-use of data. With this background in mind, our contribution answers the question of when and how data interoperability, as a precondition to data quality, should be addressed by the legislature. The paper brings together the technical, legal and economic aspects of data interoperability, conceptualizing it within the data sharing debate. It first elaborates on the notion of interoperability in the current data access and data governance frameworks. An analysis of the different technical interoperability facilitators and the existent legal framework that may hinder data interoperability in this context follows. The debate of APIs is still ongoing and brings on fundamental questions to the proper functioning of exclusive rights. To what extent could IPRs and trade secret protection encumber data interoperability? What would be the implications of granting IPR or trade secret protection for APIs, both in terms of raising incentives for their provision and with regard to effects on competition? The paper continues by considering the pros and cons of a more normative approach toward data interoperability. Data interoperability should be treated only as a means to an end and not as an end in itself. It should be taken as a part of the broader data sharing and access discussion, reflecting on the positive and adverse effects alike. To this end, a public law approach within the realm of a data governance solution seems more favorable. Such a governance solution could also entail a more consistent solution to conflicting IP, sui generis database and trade secrets protection in data, which is currently not thoroughly and clearly assessed either. These conflicts need a more holistic assessment of overlapping exclusive rights and their re-usability options.
Also published as: Max Planck Institute for Innovation & Competition Research Paper No. 20-16
