Data Access and Portability

An Emerging Structure of EU Data Law

Abstract

EU law contains a growing number of data access and portability rights, developed across different sectors and legislative instruments. Despite their fragmentation, these rights display recurring structural features that point towards an emerging system of EU data law. This article proposes a taxonomy distinguishing three categories: access rights in co-generated data, access rights in the public interest, and data portability rights in the narrower sense. The distinction is based on the contribution to data generation, the relationship between the parties, the justification for limiting the data holder’s control, and the applicable access conditions. Access rights in co-generated data primarily protect the interests of parties that participated in generating the data and generally provide free access. Public-interest access rights grant access to third parties to pursue broader regulatory objectives. Access is typically granted on fair, reasonable and non-discriminatory conditions. Portability rights occupy an intermediate position by enabling a rightsholder to require the transfer of co-generated data directly to a third party. By identifying these common structures, the taxonomy provides a framework for interpreting existing rights, understanding overlaps between different instruments, and designing future data access regimes. It suggests that previously scattered regulatory interventions are gradually developing into core building blocks of European data law.