Björn Lundqvist, Associate Professor, Stockholm University

1. Big Data and Standard Setting The Issue of Interoperability and AccessLCII-TILEC Conference 29-30 May 2017 Björn Lundqvist, Associate Professor, Stockholm University Standardizationfor the Digital Economy - the Issue of Interoperability and Access Under Competition Law Faculty of Law, Stockholm University Research Paper No. 10, on SSRN

2. Agenda • Firstly, Interoperability and standardisation, and the EU Commission’s promotion of joint standard-setting for IoT, and whether that is “good” • Secondly, the Intellectual Property Landscape of the soon to come IoT is drawn up, discussed and scrutinized, and the current issue whether non-personal digital data should become a property right, in-itself, is analysed. What effects does this have on standard-setting?

3. Benefits with Interoperability and Internet of Things • Interoperability has become a buzzword in European policy debates on the future of the digital economy. • In its Digital Agenda, the EU Commission has identified a lack of interoperability as one out of seven “most significant obstacles” to the “virtuous cycle” of digitalization. • Indeed, in an interconnected economy, interoperability of a broad variety of networks, devices and services will be key. The expected benefits of the Internet of Things and Industry 4.0 hinge on the interoperability between networks, software and data.

4. Interoperability • There is a great need for IoT standards in general and workable IP guidelines for SEP under these standards • Different layers of standards, e.g. Infrastructure and lower layer interoperability, while upper layer data interoperability is not technically necessary • There is also a difference between horizontal and vertical interoperability. • Devices and device producers need for standards and guidelines regarding infrastructure and data interoperability otherwise the system may not materialize. • However, should data interoperability standards be created under a market-driven approach or more by a ”top-down” approach?

5. Actions from the EU Commission • EU’s policy with regard to collective standard-setting is not limited to privileging and supporting market-driven cooperative standard-setting endeavours, as a “bottom-up” approach. • Indeed, Commission supports open European standards for 5G communications, for the IoT, for cybersecurity, big data and cloud computing, an “open platform approach that supports multiple application domains and cuts across silos”. Open standards shall support the entire value chain and integrate multiple technologies. • In particular, the Commission is interested in such open platforms and standards in the area of eHealth, transport systems, including automated vehicles, smart energy and advanced manufacturing • The EU Commission finds that it cannot be left to industry stakeholders to decide in which areas to develop standards, and at what speed.

6. Market Failures • Firstly, market failure that requires an industry-wide standard is when the technology being standardized is of infrastructure character an the economic advantages are so great that the industry can only have one standard, i.e. when the ”try and error” approach do not suffice. • Second, markets plauged with network effects and “tipping” or when one firm have become a monopolist. • Presumably, a third market failure situation would be markets where IP thicket has become so wide that the industry or relevant market is not functioning or even emerging; and that access to SEPs need to be obtained through a industry wide de jure standard with the complementary SSO IP Guidelines. • In this perspective, the Commission’s pro-collective standard-setting approach is not limited to addressing market failures.

7. Standardisation Initiatives • There is currently a global SSO race for IoT. Several different and new SSOs are fighting to become part of the collaborations that enact the standards for the new IoT era. • Also, CEN and CENELEC seem to be interested on the behalf of the brick and mortar industry, ” consider that there is no objection to the development of a standard that includes patented inventions provided that patent holders commit to make their technology available and grant a licence under FRAND conditions” • Moreover, several pre-standard collaborations (consortia) are being formed including several different combination of important players for the technologies that might included in the IoT standards. • That might be a competition law concern depending on the level of acceptance of these upper layer collaborations under Art. 101 TFEU. The Commission should take the standard in consideration when analysing a joint standard-setting effort.

8. IoT and its Infrastructure, i.e. BIG DATA’s ecosystemwhat Intellectual Property Rights may become applicable? Source: Electronic Rocks

9. The data, the information (as such), irrespectively how private and how valuable, is not currently covered by property right, while GDPR, Arts 18-20 give some rights. However, the infrastructure or ecosystem is covered Source: French/German Competition Authorities Report on Big Data 2016; and OECD 2015

10. Sector Specific Regulations • Directive on Payment Service II • eCallRegulationwithapps

11. eCall Regulation (more than rescue….)however, is the eCall already oudated… [Recital 16] In order to ensure open choice for customers and fair competition, as well as encourage innovation and boost the competitiveness of the Union's information technology industry on the global market, the eCall in-vehicle systems should be based on an interoperable, standardised, secure and open-access platform for possible future in-vehicle applications or services. As this requires technical and legal back-up, the Commission should assess without delay, on the basis of consultations with all stakeholders involved, including vehicle manufacturers and independent operators, all options for promoting and ensuring such an open-access platform and, if appropriate, put forward a legislative initiative to that effect. Furthermore, the 112-based eCall in-vehicle system should be accessible for a reasonable fee not exceeding a nominal amount and without discrimination to all independent operators for repair and maintenance purposes in accordance with […]. Access to insurance companies and leasing firms? A pricing issue? However, everything is done through apps now?

12. Thank you! Dr. Björn Lundqvist, LL.M. (Michigan)Associate Professor, Juridicum Stockholm University bjorn.lundqvist@juridicum.su.se Björn Lundqvist, Standardization for the Digital Economy - the Issue of Interoperability and Access Under Competition Law Faculty of Law, Stockholm University Research Paper No. 10, on SSRN,