Skyddet för data : En analys av digitala tjänsters skydd för sin data genom sui generis-rätten i ljuset av Digital Markets Act

Sammanfattning: The sui generis-right in article 7.1 of the database directive provides the maker of a database, who has made a qualitatively and/or quantitative substantial investment in the obtaining, verification and/or presentation of the contents in a database, the right to prevent extraction and/or re-utilization of the whole or of a substantial part of the database contents. In order to prevent the circumvention of article 7.1, the right to prohibit tortious dispositions of the contents was sup- plemented by article 7.5, which extends the right for the maker to prevent non-substantial parts to be extracted and/or re-utilized, provided that the extraction and/or re-utilization are repeated and systematic in a way that undermines the substantial investment the maker of the database has made.  The way that the sui generis-right is framed as an investment protection, in combination with the fact that the right’s object of protection is the investment as such, is the reason that the right has come to be regarded as a protection clause against unfair competition rather than an intellectual property right. As a result, the sui generis-right is of great significance to unfair competition and competition and antitrust law in general. This applies not only to article 102 FEUF, but especially to the DMA and in relation to the prescribed data-sharing obligation in article 6.10 in the DMA.  Competition and antitrust law in general and the DMA in particular, through its rootedness in article 3 FEU, aim to maintain competitive, open and fair digital markets. This applies, to say the least, as a part of ensuring the efficiency in the EU internal market, which by enlarge is intended to benefit the consumers. In this way, it’s understood that the consumers perspective plays a fundamental role in competition policy. In relation to the DMA, this is expressed through articles 6.2 and 6.10 of the DMA, which have the function of promoting innovation and increasing the consumers’ diversity of choice, while simultaneously giving the business users better opportunities to compete with the gatekeepers and thus become more efficient.  By imposing on a gatekeeper a far-reaching data-sharing obligation under article 6.10 in the DMA, in combination with the prohibition to use the same data under article 6.2, the gatekeepers’ sui generis-right is limited in all material aspects. Thereby, these provisions impose greatly on the gatekeepers’ ability as a maker of a database to freely dispose of their own database contents and thus obtain future returns and other competitive advantages as a result of the substantial investment. This is due to the fact that the gatekeeper is subject to an obligation to share the results of the investment with the business users.  The database directive states, however, that the sui generis-right must not be afforded in such a way as to facilitate abuses of a dominant position. By this reference it’s understood that this exception was written with article 102 FEUF in mind. In light of the significant differences between article 102 FEUF and the DMA, it can be concluded that the exception does not apply to the DMA. This is particularly the case as the DMA is framed as an ex ante-regulation, whereas article 102 FEUF is an ex post-regulation.  As this paper has highlighted, it requires great forethought when imposing a compulsory data-sharing obligation such as the one in article 6.10 in the DMA. The intended function of the sui generis-right is to promote investments in data processing and storage functions. In order to even receive or make use of the effective and high-quality data the business users have a right to receive from the gatekeepers, they have to have effective and proper databases, because otherwise it's entirely pointless to even force the gatekeepers to share their data.  Thus, a proportional balance is required between the interest in protecting the data as such by maintaining ex ante incentives to invest and the interest to promote open and fair digital markets as a way to ensure the effectiveness of the internal market for the benefit of the consumers and ex post social welfare. This could be a possible explanation to the Commission’s proposal of the Data Act, specifically article 35, which stipulates that the sui generis-right shall not be applied to machine generated data. It remains, however, to see how the question of the sui generis-right’s to be or not to be will play out in the future.