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Data Collaboration, Pooling and Hoarding under Competition Law

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Abstract: In the Internet of Things era devices will monitor and collect data, whilst device producing firms will store, distribute, analyse and re-use data on a grand scale. Great deal of data analytics will be used to enable firms to understand and make use of the collected data. The infrastructure around the collected data is controlled and access to the data flow is thus restricted on technical, but also on legal grounds. Legally, the data are being obscured behind a thicket of property rights, including intellectual property rights. Therefore, there is no general “data commons” for everyone to enjoy. If firms would like to combine data, they need to give each other access either by sharing, trading, or pooling the data. On the one hand, industry-wide pooling of data could increase efficiency of certain services, and contribute to the innovation of other services, e.g., think about self-driven cars or personalized medicine. On the other hand, firms combining business data may use the data, not to advance their services or products, but to collude, to exclude competitors or to abuse their market position. Indeed by combining their data in a pool, they can gain market power, and, hence, the ability to violate competition law. Moreover, we also see firms hoarding data from various source creating de facto data pools. This article will discuss what implications combining data in data pools by firms might have on competition, and when competition law should be applicable. It develops the idea that data pools harbour great opportunities, whilst acknowledging that there are still risks to take into consideration, and to regulate.

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