In February 2022, the European Commission issued a proposal for a Data Act regulation. The now adopted Data Act provides rules for users of Internet-of-Things devices to gain access to the data they generate using those devices. This chapter will focus on whether the compulsory access and transfer regime to the data they stipulate can be viewed as a countervailing right for users to gain access and transfer data. Moreover, the rules are difficult to reconcile with the intellectual property legal system and privacy rules and the interface between these legal systems, so with that context in mind, the obligation to allow access and transfer data will be scrutinized. To resolve the conflicts identified, and to reconcile the compulsory access and transfer regime stipulated in the Data Act with intellectual property law and privacy rules, the author proposes the creation of a new form of right for the digital economy: an access and transfer right (ATR) – which may be stand-alone or included in the Data Act – that acts as a countervailing right for the benefit of users to trump the intellectual property rights held by data holders and also provide equal access to data under the GDPR.

Utvecklingen på den digitala medie- och annonsmarknaden har gjort att stora sökmotorer och sociala medier har kunnat växa på bekostnad av traditionella medieföretag. Björn Lundqvist, professor i Europarätt, beskriver hur detta har påverkat det offentliga samtalet, och hur den lagstiftning som EU har tagit fram ska komma åt de problem som har uppstått. (2024:17epa)

The chapter discusses the objectives for regulating the digital economy and why we should view the new regulations and acts being derived from the legislative work of the EU as the emergence of a new legal discipline, the market law for the digital economy, or, short, digital market law. The energy and speed with which EU institutions are developing these diverse (and sometimes dysfunctional) sector-specific regulations for the digital economy certainly call for a more holistic approach. A general approach to the legal system now being developed in a piecemeal fashion to protect a number of freedoms and objectives for the digital economy, ensuring that a sturdy legal platform for the new paradigm is put in place without over-regulating the data-driven economy. Foremost, the new legal discipline needs its own property rights regime. As will be argued in the chapter, the general objectives for establishing a market law for the digital economy calls for a sui generis property regime for data, and the author argues that an access and transfer right to data based on the obligations stipulated in the Digital Markets Act should be developed and acknowledged as a proper property right.

Data collected and distributed on the internet is generally free, non-exclusive, and non-rivalrous. Yet online data is often difficult to access. This book examines the infrastructure for collecting, storing, and distributing data to show how it is embedded behind intellectual property and technological barriers. It proposes that the EU introduce an access and transfer governance right to data that can work in tandem with data protection rules. Chapters explore the subject matter of this protection, potential rights holders and the scope of the protection, and exceptions and limitations under intellectual property law and competition law. Comprehensive and timely, Regulating Access and Transfer of Data sets the foundations for a new legal system for our data-driven generation.