Caught in the Acts: Framing Mandatory Data Access Transactions Under the Data Act, Further EU Digital Regulation Acts, and Competition Law (Max Planck Institute for Innovation & Competition Research Paper, No. 22-12), 2022, 43
With its "Digital Regulation" package, comprising the Data Act, the Digital Markets Act, the Digital Services Act and the Data Governance Act (hereinafter together the "Digital Regulation Acts"), the European Union is currently establishing various obligations to grant access to digital data. EU and Member State competition laws contain additional obligations of this sort. Beyond the questions of whether these obligations are justified or where adjustments to the access granting obligations as such seem appropriate, the transactions implementing them (hereinafter "Mandatory Data Access Transactions") require a sound legal framework. Seeking to contribute to the working out of such a framework, this paper sets out by providing a brief overview on data access granting obligations, and their pro-transactional role, under the EU Digital Regulation, EU competition law, and – as an example for the level of Member State law – German competition law. Having diagnosed that the lack of a data transaction-specific framework, for which contract law is an essential but not the only pilar, clashes with real life business needs and realities, the analysis turns to the rules on licensing intellectual property rights (IPRs) and their aptitude to (partly) fill the gap. The role of competition law must go beyond a mere ordering of access and encompass oversight of whether access trans-actions are shaped in a pro-competitive manner. An assessment of existing Block Exemption Regulations and competition law-related provisions in the Digital Regulation Acts indicates, however, that and where competition law must evolve to perform this task. Suggesting an inductive methodology for adapting license contract and competition law rules to the particularities of data access transactions, the next step of the analysis provides examples for how to progress from concrete transactional challenges to more general transaction framing rules. Its focus lies on an appropriate application of the FRAND concept against the backdrop of experiences with FRAND in the realm of standard-essential patents. Among the issues highlighted beyond FRAND, the scrutiny of general terms and conditions in data access contracts has gained particular prominence through the corresponding provisions in the draft Data Act. A final part concludes by discussing ways forward.
