The content of this book is rather controversial. It paints a rather bleak picture, that the current EU legal economic system being developed for the data-driven economy is both outdated and – to some extent – a policy at war with itself. It promotes dominant platforms to detriment of others. Moreover, the fundamentals for creating rules are also missing. A liberal economic system needs to be based on aspects of a rights system, otherwise, we risk losing innovation, the establishment of new markets, and the creation of wealth, while we will see increasing market failures. Without a legal system for rights to data, we will lose out of a just system for the distribution of wealth. Indeed, it is time that the data-driven economy and the internet economy are granted their ‘property’ rights, reflecting the new paradigm of the data-driven industrial revolution. Moreover, such a regime fits well with the European economic constitution now being established.

Generally, it might seem that the problem of a few system leaders hoarding data should be addressed by competition law. Market power and monopolizations generally trigger competition-law remedies. However, as will be discussed below, when it comes to accessing data, and especially when access to data should be granted as a continuing service, competition law is generally the wrong platform to use. Access or forced collaboration is difficult to establish under competition law. The case law of the Court of Justice of the European Union (CJEU) makes it difficult to succeed in arguing that a refusal to grant access to data is an abuse of market dominance under Article 102 TFEU. Proving market dominance in data-related markets is a challenging undertaking and is highly case specific. Similarly, the very stringent requirements defining abuse were developed for different situations and may need to be adapted to circumstances of the data-driven economy. More importantly, only undertakings would be able to rely on a right to access data under Article 102 TFEU, which would generally exclude access claims of consumers. Finally, the enforcement system of competition law does not seem to be sufficiently effective to guarantee competitive markets for the mass phenomenon of data lock-ins caused by connected devices.1

Sector-specific regulations apply in several network industries. The telecom sector and infrastructures such as utilities have been regulated based on the notion that they are natural monopolies and need to be regulated to prevent facilitation of monopolies. However, in the beginning of the internet era, large tech escaped regulation.1

Generally, the political consensus at the beginning of the internet era was that platforms should have only limited liability under intellectual property law for content that users uploaded on these platforms.1 Now, however, the platforms are the center of gravity for the Internet, drawing in (for technical reasons and owing to network effects) all data streams in the respective ecosystems, for the benefit of the system leader controlling the platform. Furthermore, the contracts that system leaders conclude with business users, and which control their business relationship, not only normally grant the exclusive right to data generated on the platform to the platform provider but also generally neutralize any intellectual property rights held by the business user. Indeed, the system leaders are regulators of their respective ecosystems and use their system of contracts to control the ecosystems and exclude the use and importance of intellectual property rights. The platform or cloud provider contractually secures the right from the platform or cloud user, not only to store the data but also to analyze it and make use of it for the provider’s own benefit, and for the benefit of others in the ecosystem, on all connected markets. The platform providers thus become the masters of their respective data ecosystems; they do indeed hoard the data and generally do not trade or share the data.

Providing access and transfer rights (ATRs) to data for the benefit of business users (i.e., content providers and other firms) in their relationship with platforms is not an easy fix. However, such rights can be identified as intellectual property rights and, in Germany (the jurisdiction where this has been discussed most), the idea of covering data with property rights has been strongly rejected by both intellectual-property and competition-law academics.1

Data is vital to the internet-based economy and will become even more important in the old economy as the Internet of Things (IoT) gains ground. The competitiveness of firms will increasingly depend on timely access to relevant data and the ability to use that data to develop new, innovative applications and products. In consumer-oriented businesses, the relevant data is often personal information; although this data is becoming increasingly collectable, only a few firms have access to larger amounts of it.1

Data-related technology advancements have brought about a paradigm shift and have created a data-driven economy that requires a legal framework to regulate the economic behavior of its participants – both companies and consumers. However, legislators’ hands-off attitude, intended to promote a ‘free’ and unregulated Internet, has not realized the original internet dream of a borderless and radically democratic space. Some observers have even suggested that the Internet is beyond the sovereignty of governments, or even a fifth dimension, not subject to the same regulation as other domains of human activities.1 This laissez-faire approach to the digital economy has created a lawless arena where the strong prevail. These powerful participants also dominate in terms of data – the Internet’s most valuable asset – and through their actions, system leaders and silo providers are in fact hindering the free flow of information by ‘hoarding’ data (or, as the Commission formulated it, ‘data lock-in’).2 These barriers seem destined to increase in the future.

The interface between digitalized information (Data), intellectual property, privacy regulations, and competition law in the ‘Internet of Things’ (IoT) scenario is currently triggering the interest of politicians, businessmen, the academic community, and, even, the general public. The groups are interested for different reasons; for example, businessmen see an opportunity for the creation of wealth; researchers see the possibility of gaining, analyzing, and distributing knowledge efficiently; and everyone acknowledges that the collection and distribution of data may raise several concerns in reference to private and public power, freedom, privacy, and data protection concerns.