Position Paper regarding Data Act (Proposal of the European Commission, 23.02.22)

With the publication of the Data Act proposal in February 2022, the European Commission approached an important milestone in the implementation of the data strategy it had announced two years earlier. The legislative proposal includes a package of measures that are supposed to make more IoT data available to data-driven enterprises. The legislation is expected to bring about more competition in the aftermarkets for IoT devices and related services, more value generation from such data and more techno-logical innovation enabled by access to data. The most innovative and far-reaching regulative instrument applied in this context is, without doubt, the mandatory access rights regime that would facilitate flow of data from private (mostly large) enterprises to other (mostly smaller) enterprises and to the public sector. This regime is accompanied by rules about the necessity and content of commercial contracts that define private entitlements concerning access to as well as use of co-generated IoT data, including statutory requirements concerning fairness, non-discrimination and compensation. This Position Paper primarily addresses the access rights regime and its accompanying rules focusing on contracts regarding access to data. It also briefly touches upon the provisions on data portability, rules for switching between providers and trade secrets. We conclude that the consolidated impact of the access rights regime on IoT device manufacturers, third parties and the data economy at large is hard to predict. At the same time, we argue that the legal positions and entitlements the Data Act would create require further scrutiny and that there is certainly room for clarifications and im-provements in the legislative proposal. The analysis concludes with several specific recommendations.