The principle of FRAND in B2B data sharing: Lessons from licensing of standard essential patents and competition law remedies

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Data is often defined as the “oil” of the 21st-century economy: companies that successfully collect and process a large amount of data can provide more personalized services to their customers, thus becoming more competitive. However, small firms often cannot collect a sufficiently large amount of data on their own. On the other hand, market incumbents might be reluctant to grant “access” and “re-use” to their dataset—i.e., “data sharing.” The Digital Markets Act (DMA), the Data Act, and several EU sector legislations aim to stimulate B2B data sharing. These legislations generally require, under certain conditions, to grant access to their dataset to third parties on fair, reasonable and non-discriminatory (FRAND) terms. However, these legislations fail to clarify the meaning of FRAND. The paper analyzes the meaning of FRAND in the context of B2B data sharing, considering the lessons learned in the context of licensing of standard essential patents (SEPs) and EU competition law remedies.

I. Introduction 1. Data is generally defined as the “oil” of the 21st-century economy: [1] companies that successfully collect and process a large amount of data manage to provide more personalized services to their customers and reduce their production costs, thus becoming more competitive. The value of the EU data economy has steadily increased over the past decade. However, the latter remains far less developed if compared to the US data market. [2] The lack of interoperability among datasets, regulatory barriers, as well as security and data protection concerns, are the main obstacles to data sharing. [3] In addition, an incentive problem undermines data sharing: in the lack of a functioning market, firms cannot effectively assess the value of their dataset. [4] As a consequence,

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