'Data Collaboration, Pooling and Hoarding under Competition Law' (Faculty of Law, Stockholm University Research Paper No. 61) by Bjorn Lundqvist
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In the Internet of Things era devices will monitor and collect data, whilst device producing firms will store, distribute, analyse and re-use data on a grand scale. Great deal of data analytics will be used to enable firms to understand and make use of the collected data. The infrastructure around the collected data is controlled and access to the data flow is thus restricted on technical, but also on legal grounds. Legally, the data are being obscured behind a thicket of property rights, including intellectual property rights. Therefore, there is no general “data commons” for everyone to enjoy. If firms would like to combine data, they need to give each other access either by sharing, trading, or pooling the data. On the one hand, industry-wide pooling of data could increase efficiency of certain services, and contribute to the innovation of other services, e.g., think about self-driven cars or personalized medicine. On the other hand, firms combining business data may use the data, not to advance their services or products, but to collude, to exclude competitors or to abuse their market position. Indeed by combining their data in a pool, they can gain market power, and, hence, the ability to violate competition law. Moreover, we also see firms hoarding data from various source creating de facto data pools. This article will discuss what implications combining data in data pools by firms might have on competition, and when competition law should be applicable. It develops the idea that data pools harbour great opportunities, whilst acknowledging that there are still risks to take into consideration, and to regulate.
"Portability in Datasets under Intellectual Property, Competition Law, and Blockchain' by Lundqvist
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In the Internet of Things, data and the transfer of data (the porting of data) will be important for competition and, generally, for Internet of Things to work and create interoperability, new services, wealth for society etc. While porting data can be excessively difficult in the current data and cloud environment, there is a discussion that also firms should be empowered by a right to transfer data or port data. Firms should have the right to transfer “its” data from platform to platform, cloud to cloud, or in-house. A mandatory right to port data could have several benefits; one being that it promotes competition between platforms, clouds and e-ecosystem providers. Several platforms collect data on the behalf of businesses making use of their platform services. Moreover, many firms use and will use “the cloud” to collect and store data in the upcoming Internet of Things paradigm, and they will make use and purchase both cloud space and data analytics. A right to port data enables firms to change platforms and cloud providers when they are not happy with the service received. A mandatory right to port datasets would create competition, and prevent markets otherwise “tip” in the favour of one monopolistic firm. A right to port data could be included in secondary legislation. The draft Free Flow Data Regulation only contains a call for self-regulation of the possibilty to port non-personal data. However, a possibility is also to update, modernise and amend the database directive to reflect the Internet of Things era. A third solution could be to create guidelines under competition law regarding collection and transfer of data under vertical or horizontal agreements. Platforms or Clouds that ‘hoard data’ under these agreements, by stipulating covenants that they (exclusively) collect and utilize the data from its business users, may risk violating competition law should they, for example, restrict the possibility to transfer or port data. Such clause should be considered in its fair light to be equivalent to a non-compete clause. Finally, after discussing these legal solutions, the article addresses whether we have a technical solution to the problem, while the blockchain technology could be a technical mean to port data without the use of legal systems.
