Towards an Access Regime for Mobility Data
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Towards an Access Regime for Mobility Data Peter Georg Picht
Published online: 15 September 2020 Ó Max Planck Institute for Innovation and Competition, Munich 2020
Abstract (Forced) access to digital resources requires a legal framework which is at least partly sector-specific. Regarding the important sector of connected mobility, this paper tries to push the quest for such a framework. It analyzes data-specific market conditions in the sector and the need for intervention they generate, as well as potentially helpful legal tools in the GDPR (data portability) and core competition law (e.g. essential facilities doctrine, relative market power, pertinent EU Regulations, new tools in the 10th revision of the German Act Against Restraints of Competition). Based on these findings, the paper develops cornerstones for a regulatory, yet stakeholder-oriented approach, flexibly tuned with contract, competition and data protection law. Not least, participants of connected mobility markets should take up this idea, as they have a lot to contribute to its quality and a lot to lose if inappropriate rules came to be set. Keywords Connected mobility Autonomous driving GDPR Data portability Essential facilities Big data
1 Introduction Access to resources is a key issue, not only in competition law but also in many other areas of the law, as evidenced by examples like rights of way in real estate law Peter Georg Picht is Professor and holds a Chair for Business and Commercial Law, Center for Intellectual Property and Competition Law – CIPCO, University of Zurich, Zurich, Switzerland; and Affiliated Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany. P. G. Picht (&) Prof. Dr.; LL.M. (Yale); Chair for Business and Commercial Law, Center for Intellectual Property and Competition Law – CIPCO, University of Zurich, Zurich, Switzerland e-mail: [email protected]
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or IP law provisions on (compulsory) licensing. Sometimes, the law forces access to a resource even though the resource owner does not consent to it. Competition law does so, in particular, where it perceives a degree of access to and use of a resource it considers to be below the level generating optimal static and dynamic efficiency.1 When deciding about forced access, it must consider the downsides of the operation, such as the amount of resources necessary for generating the access, affected interests of third parties (e.g. incumbent holders of limited access rights), or a disincentivizing effect on the resource holder’s future market activities.2 Although the reasons for a suboptimal level of access and use can be manifold, transactional frictions – transaction costs, lack of information, etc. – or market (power) strategies3 oftentimes loom large. It seems plausible to assume, as a starting point, that these patterns – why do resource holders not grant sufficient access, why does (competition) law force access, and why ought it to carry out a careful effects analysis bef
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