Debate: Panel 4, The Economics of Data, moderated by Nadia Filali

Presented at the Legal Challenges of the Data Economy conference, March 22, 2019.


AUDIENCE: OK, thank you very much for this. It was very, very interesting. And I have a question for Professor Kerber. When we think of access to data and making companies give up their data in a way, it's always connected to dominance somehow. And what do you think about that? Because if we don't establish that, there is no context of dominance in self-driving cars, then how do we-- you know, how do we create a solution for access to data?

Because the way I see it, when you look at competition, in a way can we think that regular cars and self-driving cars today compete or not. You know what is the market? And how do we apply a sort of an essential facility framework? I mean maybe I get it wrong. So I would like your clarification on this. Thank you very much.

WOLFGANG KERBER: This is a very important question. I think I have two answers. The first one is what I presented at the end. You can also perhaps use in Germany, this idea of dependency, and perhaps this might also be an option in France In that case, you would not need dominance. Yeah? So all the service providers are dependent from the data of the common factories for offerings their services. And therefore, you would not see dominance.

The second point is that you can also make an argument that on the aftermarket and all the complimentary services, whereas the service providers really need access to the [INAUDIBLE] data and access to the car. That's the common factors are dominant in regard to these aftermarkets. And so we can also use Article 1 or 2 and I have understood that so our case decisions in Germany and also in England and the European Union, where this has also been acknowledged already is that in these after markets, especially from the car manufacturers, there might be can use the dominance concept also.

NADIA FILALI: There was another question there.

AUDIENCE: Quick question to Professor Kerber. I have to say, I was not particularly persuaded by the market failures that you have identified in this example. It seems that if you're right in this case, then almost every product in the market suffers from a market failure. After all, we have numerous car manufacturers that are competing. And although consumers don't understand exactly what are the inner works of that system of data, they also don't understand how engines work.

And they don't understand how safety of cars work. But we think that by and large, other than in extreme situations, you don't have to take away that decision from car manufacturers how to build engines and safety devices. In fact, they usually go beyond what is the minimum standards necessary. So I don't-- furthermore the pace of technological change seems to me to be fairly rapid and rampant in many products that have closed systems.

Take for example smartphones. We have new models every year. With car manufacturers, have new models every few years. It doesn't seem to be that while people may be locked into a particular system that they chose to, that the switching costs are so enormous to eliminate the forces of competition. So in that sense, I would you know, if you want to clarify why is this worse than any other context that we've seen?

WOLFGANG KERBER: You are entirely right that this question has been asked, the question about systems competition. And therefore it's very necessary to make a specific argument, why is this is a special problem here in regard to cars? Yeah? The point is car is a durable product and you are buying it. And it's about a lifetime of I don't know, 15 years or something like that.

And you are really locked into those cars for this whole time. If you're buying right now a connected car, you have no idea what kind of services are offered in this car, in three, five years. But you're still locked into the car. So if you are dependent on this car manufacturer, a consumer cannot assess this. This is different from if you are buying a watch or something. You might also have to repair it. But this is a very different situation.

But I think this is also the reason, if it would not have such a kind of a problem, then all those very old tradition, [INAUDIBLE] the regulation, and the type of regulation would not be necessary. So we have, and I think we have also in the US to some extent, I think you have state legislation about right to repair. So that there are independent repair and

Maintenance services, and such this is the competition on this aftermarket services is protected. And we do not rely only on systems competition. So otherwise we would also not need this mandatory access to technical information that we have for, I think 30 years also in Europe already, about repair and maintenance services. But you are entirely right, that this is, from an economic perspective, I think the most important question to ask, what about competition among [INAUDIBLE] manufacturers?

Perhaps I might add one point which I have not here mentioned is, you can also ask whether the extended [INAUDIBLE] concept which is really proposed by the association of European car manufacturers, as a general solution, and which they also make an ISO standardization, so they have a [INAUDIBLE] process, because this is in, itself a collusive agreement. And therefore there is not really competition about technology and about the governance issues here?

This is an another we should investigate whether this is the case or not. Perhaps it is also different really into US. And I would be very curious about it.

NADIA FILALI: Thank you.

VALERIE-LAURIE BENABOU: I just read in the newspaper today that in the UK, the Uber drivers have asked Uber to display their data for them to have and to get access to their driving data. And it's interesting that you feel like it's not-- well, this is not the car manufacturer actually but do the people in charge of the operating system or the information system. And there is a claim of the those driver to get access to the data. So here you see, well--

And for the obsolescence, also we have a huge problem. IF you want to keep pace with innovation, it's your choice. But we are in a sustainable-- well we try to get to a sustainable environment, which mean that maybe I will not have the possibility or the willingness to buy the new version of the Apple phone and keep my old iPhone. But if I don't have access to the information then I cannot do that.

NADIA FILALI: Thank you. Sorry for-- sorry, because we have-- we are going to run to the conclusion of this conference. I think we can talk about more things than inclusion, and many things about the last question. But we are now a conclusion of [INAUDIBLE] professor of computer science in University [INAUDIBLE] President of the Ethical Committee. I think so there is some question in the question of [INAUDIBLE] fairness, justice, and data. Because everyone can buy [INAUDIBLE].

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