How Will Fair, Reasonable, and Non-Discriminatory Terms be Determined for Accessing Digital Platforms?

The EU’s Digital Market Act (DMA) designates the largest digital platform operators as “gatekeepers” and imposes upon them obligations to provide access to their platforms on fair, reasonable, and non-discriminatory (FRAND) terms. Terms for accessing digital platforms is also an issue that has arisen and is likely to continue to arise in litigations in the United States, EU, and other jurisdictions. But in the context of digital platforms, what does FRAND mean?

How will the intangible assets underlying digital platforms be identified and valued to ensure incentives remain to invest in the development and operation of digital platform for the benefit of users? Does the jurisprudence concerning FRAND in the standards development context offer any guidance?

Our presentation will raise these questions and suggest issues relating to them, which will be of significant import as existing digital platforms grow and new ones emerge.