Legal, economic, and technical perspectives on interoperability or how to gain normative strength via technical determination by law
We are delighted to invite you to the next lecture in the MIPLC Lecture Series, which will be given by Dr. Begoña Gonzalez Otero and Jörg Hoffmann. They will speak on
“Legal, economic, and technical perspectives on interoperability or how to gain normative strength via technical determination by law”.
The talk will take place on Tuesday, 23 March 2021, at 2:00 pm (CET) on Zoom.
After registering, you will receive a confirmation email containing information about joining the meeting on Zoom.
Abstract
In the current data access and sharing debate, data interoperability is widely proclaimed as being key for efficiently reaping the economic welfare-enhancing effects of further data re-use. Although we agree, we argue for a more holistic view on the notion of data interoperability. Neither law nor economics or technology have assessed the notion of data interoperability coherently and cannot do so straightforwardly. There is no common understanding of the term interoperability. From a technical perspective, there are different enablers of interoperability, and interoperability counts with different degrees. From an innovation policy and innovation economics perspective, it is also not clear how to strike the right balance between excludability enabled by a lack of interoperability and the need of making data or systems (inter)-operable with each other and what role the legislature should play. Furthermore, merely outlining interoperability as an abstract legal obligation may lack normative strength. Antitrust remedies, data governance provisions, or data access rights need to reflect on the different technical concepts of interoperability and should also interpret the provision in light of the legislative rationale. This leads us back to traditional normative economic regulation theory and the question of when exactly and how data interoperability - also as a precondition to data quality – should be tackled by the legislature and how it can be effectively enforced. To this end, subjecting dominant online platform companies to additional interoperability obligations and stricter monitoring can be an effective approach to control the abuse of market power and is currently embedded or foreseen in the most recent Digital Laws in Germany and Europe (10th Amendment of the German Antitrust Code (GWB)/ Digital Markets Act). Moreover, under the Second Payments Services Directive (PSD2) certain innovative payment service providers may now claim real-time access via APIs to certain account information that must be interoperable in order to immediately initiate payments and foster e-commerce. However, such privilege may also create certain tensions with existent IP and Trade Secrets Laws. It should also be borne in mind the costs coming from data access regimes aiming for a cross-sectoral (horizontal) data interoperability, that is, addressing the „balkanization“ of data in specific sectors.
This lecture portrays the current policy debate pertaining to data access and interoperability, while it provides a multidisciplinary analysis on the various aspects of the interoperability conundrum. It will also present some ideas as to how technical determination by law could gain normative strength. For additional information, please refer to the following SSRN publication.
Speaker Info
Dr. Begoña Gonzalez Otero
Mr. Jörg Hoffmann
Other topic-related publications by the speakers:
1. Hoffmann, Jörg, Vásquez Duque, Omar, Can data exploitation be properly addressed by competition law? A note of caution, (2021) Concurrences N°1-2021, pp. 75-82.
2. Hoffmann, Jörg, Safeguarding Innovation through Data Governance Regulation: The Case of Digital Payment Services (May 18, 2020). Max Planck Institute for Innovation & Competition Research Paper No. 20-08, Available at SSRN or here.
3. Gonzalez Otero, Begoña, Compelling to Disclose Software Interoperable Information: A Risk for Innovation or a Balanced Solution? (January 2013). The Journal of World Intellectual Property, Volume 16, Issue 1-2 (May 2013)
We look forward to seeing many of you at the talk!