The word “data” refers to facts likely to be recorded, and which have an implicit meaning (Elmasri et Navathe, 2016). “Data” can be personal (date of birth, phone numbers), non-personal (anonymized, weather data), industrial (customer list, schedule of a transport service) etc. Data can be therefore thought as a medium from which it is possible to extract information. This information can then be processed in an automated or non-automated way to generate economic value i.e., training algorithms, better control of a supply chain, medical innovation etc.

The information and the data that underlies it has a characteristic of being non-rival. Indeed, taken isolated, the use of data by one party does not alter the ability to use the same data by another agent, given the seemingly zero marginal cost of reproducibility (Jones & Tonetti, 2020). This paradigm argues for the broadest possible data access regime; however, this does not extend to explain all types of data, nor does it capture the competitive issues associated with data sharing. The use of data may be contrary to the interests of some parties – for instance because of sensitive data, privacy concerns, etc. – which imply a lot of costs of conforming to standards (Campbell et al., 2015). Moreover, the complementarity of the data along with the need to carry out certain ex-ante processing (organizing, aggregating) can be obstacles to data collection and sharing. In this way, the collection and processing of data by third parties can generate transaction costs that are greater than the marginal value of each dataset, but less than the value that an agent could derive from combining them (Buchanan & Yoon, 2000).

In summary, the asset represented by data constitutes an increasingly important opportunity to create value, but by its nature, and its economic characteristics, the data economy suffers from market failures. These two arguments make explicit the need for regulation of the data industry. It is the European Union, and more precisely the European Commission, that has imposed itself as the regulator of data. Although the very idea of regulating “data markets” appeared after the first directive on the subject. Indeed, it is not the economic reasoning that is at the origin of the first directive of the European Commission. The European Union initially saw regulation as a means of operationalizing pre-existing human rights and protecting citizens against potential abuses. It was only later that the EU adopted regulation as a means of stimulating and protecting European economic interests in the data-intensive digital sector.