Regulating the Data-Driven Economy Under EU Law – Access and Portability of Data

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While business users face difficulties accessing and porting data on platforms, the Digital Markets Act and the proposed Data Act have been hailed as the legislative tools enabling users access and transfer the data they have generated on platforms controlled by gatekeepers or Internet of Things manufacturers. The tools provided by the Digital Markets Act and the proposed Data Act respectively are discussed in this manuscript and the author argues that users should have a more elaborated right to first access the data they produce on platforms, with Internet of Thing devices and in ecosystems, and secondly transfer such data from platform to platform, cloud to cloud, thing to thing or in-house. A right to access and transfer data could have several benefits; it benefits dissemination of data, creativity and innovation in connected markets and it promotes competition between platforms, clouds and ecosystem providers. Creativity will be enhanced because necessary data — being the raw material for new innovations—will be more broadly disbursed. It will also benefit consumers having a disbursed and disseminated data commons for the development of ideas, innovations, and the exchange of knowledge. Indeed, with an aim of finding a solution for dysfunctional and unfair data-driven markets; the proposal is that the EU should introduce an access and transfer governance right to data, an Access and Transfer Right (ATR). A new form of right, however not derived from the idea of exclusive control of the object of property, but on a right to access and transfer data. A governance right that can work in tandem with data protection rules benefiting individuals and businesses. Areas that will be explored include the subject-matter of the protection, potential right holders and the scope of the protection, including exceptions and limitations under intellectual property law and competition law.