Data licences under the Data Act – What does FRAND mean in this context?
Episode 44 of the Data Navigator podcast focuses on FRAND in the Data Act – specifically, the conditions under which data owners must disclose IoT data to third parties and what they are permitted to charge for this. Martin Schirmbacher and Hubertus von Rönne explain the details of the new legal framework. The starting point is the familiar triangle: a user (e.g. a wind farm operator) instructs the manufacturer (e.g. Vestas) to send operational data directly to a third party (e.g. the start-up Turbit). To this end, a contract must be concluded between the manufacturer and the third party (see Art. 8 Data Act), and remuneration is governed by Art. 9 DA, all on FRAND terms. The user, however, may request the data free of charge. Martin and Hubertus go through in detail which costs the manufacturer is permitted to charge (provision costs, onboarding, margin where applicable, and investment costs – though the latter, for example, not vis-à-vis SMEs), which billing models the Commission’s draft guidelines provide for, and what ‘non-discriminatory’ means in practice. Key principle: The value of the data itself must not be priced. The conclusion: Remuneration issues will develop differently depending on the sector. At present, progress is often still stalling on fundamental issues: What data is actually being shared, and how should it be categorised? The call remains: producers, users and data recipients must come together within their respective sectors and also discuss the terms of data provision.