Data Act

Data holder

The Data Act is unclear as to who the data holder is. [Article 2(13) Data Act] Until this is clarified, it would make sense in our assessment to assume that the data holder is the person who has the actual or legal authority to dispose of the data. 

Data processing services

This term primarily encompasses the models “Infrastructure as a Service” (IaaS), “Platform as a Service” (PaaS) and “Software as a Service” (SaaS), but other services are also conceivable, such as “Storage as a Service” and “Database as a Service”. In particular, these services must be scalable (i.e. the computing resources are flexibly allocated by the provider irrespective of the geographic location of the resources in order to handle fluctuations in demand) and elastic (i.e. the computing resources can be provisioned and released according to demand in order to rapidly increase or decrease resources available depending on workload). 

Data Contracts

This term covers not only contracts for product data or related service data, but all B2B contracts for any type of data.

Microenterprise, small enterprise, medium-sized enterprise

The EU definition is relevant for determining what is considered to be a microenterprise, a small enterprise or a medium-sized enterprise (SME): 

User

This can be a user of a connected product or a related service. Both are treated equally. The user can be a natural or legal person. Not only the end consumer who uses or obtains the product or service for private purposes can be a user, but a company can as well.

• The user of a connected product is its owner or someone who is contractually entitled to use the product for a fixed period of time, i.e. in particular the renter or lessee. [Article 2(12) Data Act] Several persons can also be users of a connected product at the same time, e.g. co-owners. Contrary to the German wording “Besitzer” (English: possessor), mere actual possession is not sufficient. Accordingly, if someone has purchased or leased a smartwatch (a connected product) for example, they are its user. If they lend it to a friend as a favour to use for sports, that friend does not become a user because they have not acquired a contractual right of use.
   
• The user of a related service is the person who makes use of the service. [Article 2(12) Data Act] The Data Act does not appear to require a contractual relationship in this case. However, this should most likely be interpreted to mean that the user is the person who has (contractually) subscribed to the service and utilises the services on this basis.
   

Readily available data

Product data or related service data, in each case including the metadata necessary for the interpretation of such data, which (i) the data holder lawfully obtains or can lawfully obtain from the connected product or related service without disproportionate effort and (ii) at most requires a low level of processing. For details see Question 9. 

Product data

Data generated by the use of a connected product which can be retrieved via the device as intended.

Related service data

Data representing the digitisation of user actions or of events related to the connected product which are generated by the user during the provision of a related service by the provider.

Related service

A related service is a digital service which is connected to a connected product and supports its functions.  It can also be software. It renders, adds to, updates or adapts the product’s functions either from the outset or later. However, a mere ability to read data from a connected product is not sufficient; a data exchange must take place, i.e. the service must also be able to control the product functions. Examples: Software updates which improve the security or performance of a connected product or add new functions; apps or services for remote servicing or diagnosis; personalised recommendations or advertising that is offered based on user behaviour.