The Essential Facilities Doctrine, Intellectual Property Rights, and Access to Big Data

Abstract This paper analyzes the criteria for applying the essential facilities doctrine to intellectual property rights and the possibility of applying it in cases where Big Data is the alleged essential facility. It aims to answer the research question: “What are the specifics of the intellectual property criteria in essential facilities cases and are these criteria applicable to Big Data?” It points to the semantic openness of the “new product” and “technical progress” conditions that have been developed for assessing whether an intellectual property right constitutes an essential facility. The paper argues that the intellectual property criteria are not applicable in all access to Big Data cases because Big Data is not necessarily protected by copyright. While a set of Big Data could be protected by copyright if certain conditions are met, even in such cases the lack of intrinsic value of Big Data significantly limits the applicability of the intellectual property criteria.