3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

in the connected product, using proprietary, complex algorithms and which could be subject to intellectual property rights. From this insufficiently precise definition of the scope of the Data Act (ACEA, 2022; Kerber 2023), it can at least be inferred that it does not facilitate aftermarket access to vehicle functions and resources in any way, because it only regulates access to raw data generated by smart cars, or to the elementary organization of this data according to the main categories, resources or purposes (perhaps the analogy of a library can be helpful here, which provides both access to information contained in books and to a catalogue that sorts these books according to various aspects). Access to a car’s IT equipment, allowing, for example, the addition of the manufacturer’s original software controlling a particular unit in the vehicle, certainly does not fall within the scope of the Data Act (Kerber and Gill, 2022). The second crucial aspect is the modus operandi of data disclosure, which does not fundamentally disturb the more advantageous position of the gatekeepers of the original producers, from whom all interested parties must demand access to the data. While the Data Act is based on a principled demand for the empowerment of users in relation to the data generated by the smart devices they use. At the same time, it presupposes a certain triangular relationship between data holders (car manufacturers), users (car owners or drivers) and data recipients (the aftermarket interested in obtaining and using the data generated), giving important powers not to the latter but to users (Kerber, 2023). The Data Act therefore regulates B2C data disclosure in priority (Art. 3) over B2B data transfer, as third parties (data recipients and data processing services) can only access the data upon request by a user, or they can be a party acting on behalf of a user (Art. 5), except of course when their entitlement to access the data is regulated by a specific EU regulation (Regulation 2018/858 for OBD data and data necessary for repair and maintenance of vehicles) (Art. 8). In any case, unless the obligation of the producer (data holder) to share data with other market actors is regulated by a specific law, the mover of the data transfer to independent operators is always the user, who must be active and ask the producer to agree on the transfer of his data with the selected aftermarket entity. If the manufacturer is requested by the user, it has the obligation under Article 5 of the Data Act to make readily available data, as well as the relevant metadata necessary to interpret and use those data, to a third party without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge to the user, in a comprehensive, structured, commonly used and machine-readable format and, where relevant and technically feasible, continuously and in real-time. While data disclosure for B2C is free of charge, for B2B the Data Act allows compensation for making data available, which should be non-discriminatory and reasonable, but may include a margin (Art. 9). The Data Act thus, at first glance, weakens car manufacturers as potential gatekeepers of car-generated data and, on the contrary, strengthens their users to decide who should receive “their” data. However, the immediately apparent bottlenecks of the chosen mechanism from an aftermarket perspective are at least three: (a) user’s inertia or status quo bias , phenomena documented by behavioural research and also by the little use to date of Art. 20 of the GDPR facilitating the portability of personal data on

155