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1.
The essential facilities doctrine, intellectual property rights, and access to big data
Rok Dacar, 2023, original scientific article

Abstract: This paper analyzes the criteria for applying the essential facilities doctrine to intellectual property rights and the possibility of applying it in cases where Big Data is the alleged essential facility. It aims to answer the research question: ‘‘What are the specifics of the intellectual property criteria in essential facilities cases and are these criteria applicable to Big Data?’’ It points to the semantic openness of the ‘‘new product’’ and ‘‘technical progress’’ conditions that have been developed for assessing whether an intellectual property right constitutes an essential facility. The paper argues that the intellectual property criteria are not applicable in all access to Big Data cases because Big Data is not necessarily protected by copyright. While a set of Big Data could be protected by copyright if certain conditions are met, even in such cases the lack of intrinsic value of Big Data significantly limits the applicability of the intellectual property criteria.
Keywords: essential facilities doctrine, intellectual property rights, big data, new product condition, technical progress condition
Published in DKUM: 11.04.2024; Views: 82; Downloads: 8
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2.
Is the essential facilities doctrine fit for access to data cases? The data protection aspect
Rok Dacar, 2022, original scientific article

Abstract: Personal data can be of great economic value for companies as it is an essential input for the offering of a wide array of services. One way for a company to obtain access to essential personal data controlled by another company is by demanding mandatory access on the grounds of the essential facilities doctrine. Such access, however, can violate the right to the protection of personal data of the data subjects if it is not based on one of the legitimate grounds for the processing of personal data set by the GDPR. Two of these grounds are especially likely to be applicable to the access to personal data mandated using the essential facilities doctrine: the interpretation of the Commission decision or the judgment of the Court of Justice ordering the granting of access as a legal obligation and the legitimate interest of the company requesting access, for such access. The anonymisation of personal data is not a viable option for the circumvention of the rules of the GDPR as anonymised personal data loses most of its economic relevance for companies.
Keywords: essential facilities doctrine, right to protection of personal data, grounds for processing personal data, anonymisation of personal data, General Data Protection Regulation
Published in DKUM: 26.09.2023; Views: 278; Downloads: 8
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