Data as infrastructure? A study of data sharing legal regimes

Abstract

The article discusses the concept of infrastructure in the digital environment, through a study of three data sharing legal regimes: the Public Sector Information Directive (PSI Directive), the discussions on in-vehicle data governance and the freshly adopted data sharing legal regime in the Electricity Directive. While aiming to contribute to the scholarship on data governance, the article deliberately focuses on network industries. Characterised by the existence of physical infrastructure, they have a special relationship to digitisation and ‘platformisation’ and are exposed to specific risks. Adopting an explanatory methodology, the article exposes that these regimes are based on two close but different sources of inspiration, yet intertwined and left unclear. By targeting entities deemed ‘monopolist’ with regard to the data they create and hold, data sharing obligations are inspired from competition law and especially the essential facility doctrine. On the other hand, beneficiaries appear to include both operators in related markets needing data to conduct their business (except for the PSI Directive), and third parties at large to foster innovation. The latter rationale illustrates what is called here a purposive view of data as infrastructure. The underlying understanding of ‘raw’ data (management) as infrastructure for all to use may run counter the ability for the regulated entities to get a fair remuneration for ‘their’ data. Finally, the article pleads for more granularity when mandating data sharing obligations depending upon the purpose. Shifting away from a ‘one-size-fits-all’ solution, the regulation of data could also extend to the ensuing context-specific data governance regime, subject to further research.

Data ecosystems for protecting European citizens’ digital rights

“…This transformational process stemming from a black-boxed algorithmic momentum often gets perceived as a mechanism that increases the efficiency of existing approaches or as simply a process of policy adjustment. Nevertheless, this paper argues that data requires and creates data infrastructures and institutions (Ducuing, 2019;Gray et al, 2018;Kotsev et al, 2020) that empower data and both should be endowed with ethical and democratic governance (Cardullo et al, 2019;Ruppert et al, 2017). This paper presents and develops both data infrastructures and institutions, collectively defining them as data ecosystems (Calzada, 2019a;European Commission, 2018a, 2018bJanssen and Kuk, 2016;Lnenicka and Komarkova, 2019;Oliveira et al, 2019).…”

Data governance: Digital product passports as a case study

“…Their usage evolves over time, following the demand (Janssen et al, 2009, p. 233). DPPs and the overall DPP governance (including 'systems', 'databases' and 'registries') can thus easily be pictured as a new purposive infrastructure for the transition to the CE (on the notion of 'purposive infrastructure', see (Ducuing, 2019)). Data have been qualified as having the potential for constituting infrastructural resources in the data economy by the OECD (OECD, 2015, pp.…”

“…The sharing of product D&I may indeed put the IPRs and trade secrets of manufacturers at jeopardy. Any DPP obligation should therefore be analysed against the fundamental right to property 41 and the fundamental freedom to conduct a business 42 as discussed in the context of other data sharing obligations (Drexl, 2017(Drexl, , 2018Ducuing, 2019;Padova, 2019). Besides, some D&I, such as information on energy consumption or product use, could relate to individuals as consumers, which triggers the application of personal data protection (the GDPR).…”

“…Their usage evolves over time, following the demand (Janssen et al, 2009, p. 233). DPPs and the overall DPP governance (including ‘systems’, ‘databases’ and ‘registries’) can thus easily be pictured as a new purposive infrastructure for the transition to the CE (on the notion of ‘purposive infrastructure’, see (Ducuing, 2019)).…”

“…See (Drexl, 2017, pp. 280–287; Ducuing, 2019; Geradin, 2020; Graef, 2016; Graef & Prüfer, 2018; Kerber, 2018; Martens & Mueller-Langer, 2018; Schweitzer & Welker, 2021; Tombal, 2020, 2022, sec. 6.3).…”