Managing access to data: anticipate the next policy developments

In a report published in April 2019, the European Commission calls for a revitalisation of access to data rights as a tool of competition law enforcement. It also recommended updating the competition law analysis of aftermarkets to take into account the specificities of data. These indicators of enforcement policy are useful, but the contours of the law surrounding data are fuzzy. A few tips might bring some peace of mind when issues related to data and aftermarkets arise.

Data in aftermarkets: a most valuable commodity

Aftermarkets are markets for the supply of products or services needed for a long-lasting piece of equipment. This equipment needs complementary products (spare parts or consumables), or services (diagnostics, maintenance and support, software upgrades, updates, bug fixes and patches), to keep it in good working order. The equipment is known as the "primary product" and its market is called the "primary market". The complementary products or services are known as "secondary products or services" and their markets are known as "secondary markets" or "aftermarkets".

In the world of aftermarkets, access to data produced by a machine may be essential in order to supply spare parts or services needed to maintain that piece of equipment. The economic relevance and profitability of aftermarkets such as maintenance and support can be high, notably in sectors of complex technical equipment. This can make the data generated just as economically valuable.

Towards a revival of aftermarket antitrust analysis for data?

Where data is essential to compete, the EU Expert Group (at the origin of the report) singled out several ways to level the playing field for competitors. One of them was refurbishing the conventional competition law notion of aftermarkets.

In EU law, control over a commodity considered essential can raise anti-competitive concerns. Just imagine that the original equipment manufacturer controls access to the data produced by a particular piece of equipment. He has the possibility to exclude others from accessing this data and locking the users into its own aftermarket services. He might be then accused of building a stronghold over the aftermarket (a so called "abuse of dominance").

Where the original manufacturer enjoys some degree of market power (even just bilaterally), the bargaining power of the buyer may not be sufficient to gain access to data. But, if certain types of data were to be considered as an essential facility, a duty to license could be imposed by enforcers to ensure fair play in aftermarkets.

The Commission's tips for sound management of use and access to data

The key to control lies in the contractual relationship. It is only really through contracts that a business can legally manage use and access to data.

In 2018, another expert panel provided some key principles which should be respected in data-related contractual agreements. Those responsible for contract drafting are well advised to respect the following principles:

  1. Identifying, in a transparent and understandable manner, the parties that will have access to the data generated, the type of such data and at which level of detail, as well as the purpose for using such data;
  2. Recognising that where data is generated as a by-product of a product or service, several parties have contributed to creating the data;
  3. Protecting both the commercial interests and secrets of data holders and data users;
  4. Ensuring undistorted competition when exchanging commercially sensitive data; and
  5. Minimising data lock-ins by enabling data portability as much as possible.