Competition and Data: Potential Remedies

21 Wake Forest J. Bus. & Intell. Prop. L. 102

Firms with disproportionately large data holdings are unlikely to
willingly share their data with rivals because access to large amounts of
data may provide a firm with an advantage over its competitors. As a
result, large asymmetries in data holdings are likely to raise competitive
concerns. This article addresses the types of antitrust and regulatory
interventions that may be used to address these concerns. Specifically,
it examines past efforts to remedy data-related competition issues by:
(1) preventing asymmetries from developing, for example by blocking
mergers that would lead to that result; (2) conditioning the approval of
mergers on an agreement by the merging parties to divest some of their
data; (3) requiring existing data access arrangements to be maintained;
(4) requiring firms to keep their data holdings in separate “silos”; or (5)
mandating that a firm provide access to its data to its competitors. This
article also explains how past efforts to address the competitive effects
of data asymmetries may have to be adapted to deal with the effects of
the large differences in data holdings that have developed more
recently.