A Legal Framework for Access to Data – A Competition Policy Perspective

The paper strives to systematise the debate on access to data from a competition policy angle. At the outset, two general policy approaches to access to data are distinguished: a “private control of data” approach versus an “open access” approach. We argue that, when it comes to private sector data, the “private control of data” approach is preferable. According to this approach, the “whether” and “how” of data access should generally be left to the market. However, public intervention can be justified by significant market failures. We discuss the presence of such market failures and the policy responses, including, in particular, competition policy responses, with a view to three different data access scenarios: access to data by co-generators of usage data (Scenario 1); requests for access to bundled or aggregated usage data by third parties vis-à-vis a service or product provider who controls such datasets, with the goal to enter complementary markets (Scenario 2); requests by firms to access the large usage data troves of the Big Tech online platforms for innovative purposes (Scenario 3). On this basis we develop recommendations for data access policies