Data Access Under the Draft Data Act, Competition Law and the DMA : Opening the Data Treasures for Competition and Innovation?

In the ongoing transformation from “industrial capitalism” towards an “informational capitalism”, one of the core challenges is for the law to design and enforce an appropriate legal framework for the access and use of data. Focusing on access to product and online services usage data, the aim of this paper is to describe and systematize the core elements of this legal framework in the making and to provide some guidance for how it could be further developed. Access by product or services of users to the individual level data that their usage generates must be distinguished from access to bundled individual level and aggregated data by third parties. With regard to data co-generators’ access to individual level product usage data, the Draft Data Act proposes to create new rights to access that will become part of a new private law infrastructure of data rights. These access rights are granted independently of whether the data holder is dominant. With regard to data co-generators’ access to individual level services usage data, the DMA establishes rights of access only vis-à-vis gatekeepers within the meaning of the DMA. Third party undertakings who request access to bundled individual level or aggregated data can, as of now, only base their claim on Article 102 TFEU and – in the case of search data – on Article 6(11) DMA. A regulatory approach has been proposed as an alternative. This paper strives to systematize this hotchpotch of approaches and discern the broader principles that can guide the legislature in erecting and fleshing out the legal framework for data. Ideally, markets for bundled individual level or aggregated data will emerge based on the rights of data co-generators to access individual level data. For this to happen, data intermediaries will have to play a larger role and succeed in bundling and marketing such data