Conceptualizing digital infrastructure: a study of data sharing legal regimes in the field of network industries

The paper “Conceptualizing digital infrastructure: a study of data sharing legal regimes in the field of network industries” (Ducuing, C.) will be presented at the 8th Conference on the Regulation of Infrastructures (20-21 June, 2019).

ABSTRACT

The paper aims to contribute to finding solutions to the challenges arising from the growing role of a digital infrastructure in the value chain of traditional industries, and especially of network industries. Digitization – by means of data-driven techniques – of the traditional network industries consists of very diverse initiatives from different players, mainly incumbent operators and new (ICT) players. The introduction of data-driven techniques is generally viewed as a position form of optimization of network industries’ activities and value to society, and is sometimes even pursued, such as in the case of MaaS (Mobility-as-a-Service). The scholarship has however also shown that the emergence of a digital layer disrupts the ecosystem of network industries, when it leads to digital platformization and to the commodification of the traditional network operators. The specificity of platformization in the field of network industries was found to consist in the risk that the (financial) sustainability of subsidized network operators may be endangered, as a result of the capture of value from the digital platform. Two main regulatory solutions have been envisaged: regulating a “fair” data transaction between the traditional operator and the digital platform on the one hand, and regulating the digital platform as an infrastructure in the network industry ecosystem, in addition to the physical infrastructure, on the other hand.

The present paper aims to contribute to the scholarly debate on this topic, by discussing the concept of infrastructure in the digital environment. The hypothesis is hereby twofold. With regard to the digitization of network industries, we firstly posit the existence of conflicting views on digital infrastructure, or in other words of two layers of digital infrastructure. Secondly, we posit the need for a legal consistent conceptualization of ‘infrastructure’ for the digital environment. In the light of the theoretical consideration of “most data” as infrastructure proposed by the OECD, the paper analyzes three illustrations of data sharing legal regimes – or legislative initiatives – in the field of physical infrastructure, namely the PSI Directive, the on-going discussion on the governance of in-vehicle data and the proposal of the Commission to regulate “energy data management” as part of the on-going revision of the Third Energy Package.

Adopting an explanatory methodology, the paper exposes that these data sharing regimes are based on two close but different sources of inspiration, which are however intertwined and left unclear. On the one hand, by targeting – public or private – entities deemed “monopolist” with regard to the data they create and hold, these regimes are undoubtedly inspired from competition law and especially the essential facility doctrine. On the other hand, beneficiaries appear to be both entities in related markets who need data to conduct their business, but also third parties at large to foster innovation. The latter is found to illustrate a purposive view of data as infrastructural resource. This understanding of “raw” data (management) as infrastructural resource for all to use may run counter the ability for traditional operators to get a “fair price” for ‘their’ data. The paper therefore proposes to further differentiate the data sharing legal regimes according to the rationale and to the beneficiaries. Additionally and in a broader perspective, the paper also highlights the need to further research the conditions under which the legitimate interests of the stakeholders can be balanced in data sharing legal regimes – or even digital infrastructure, specifically hinting at operators burdened with subsidized public service obligations.

Presentation is available here.

ABOUT THE AUTHOR

Charlotte Ducuing, LLM, is a researcher in law at the Centre for IT and IP law (CITIP) of KU Leuven. Charlotte has experience in transport law (especially in the railways), European law and ICT law. She worked as in-house lawyer in the Belgian Railways for 6 years (Thalys International and Infrabel). She worked as teaching assistant at the University of ULB (Belgium) for five years (2012-2017). She holds a Master’s degree in law from the University of Lille (France) with specialization in European law (first in the year), a Master’s degree in political sciences from the University Lille (Institut d’Etudes Politiques de Lille) and a LLM Intellectual Property and ICT Law (cum laude) from KU Leuven (2018). She is experienced in research on digitization of transport (railways in IN2DREAMS and connected and automated driving in CONCORDA). Her main research interests extend to economic law in the digital environment, with a focus on competition law and transport sector-specific regulation, regulation of data and data exchange, algorithmic personalization of the law and private law, cybersecurity law.