Abstract
To unleash the potential of new data-driven opportunities, players in the data market need to have access to large and diverse datasets. Access in relation to data is therefore a crucial factor. However, the new data economy raises unsolved issues. Where a multitude of actors interact in the elaboration of data, it is often questioned: who owns the data? As part of its Digital Single Market strategy, the European Commission has started a series of initiatives aimed at addressing the data ownership issue. They culminated with the idea of introducing a novel right in raw machine-generated data.
This chapter briefly summarizes the European Commission’s strategy. It recalls the main characteristics of the data value chain. It then elaborates on the existing EU acquis on data ownership, deriving from intellectual property rights (namely copyright and database right), trade secrets, traditional property, and factual control situations derived by data protection laws. These ownership mechanisms are powerful although difficulty extend to raw data. Despite this, gaps in law have been filled through contractual schemes and technological access restrictions that enhance the ability to control data.
The chapter further explores the position of those that support the idea of a new property right in data and elaborates on the new right proposed by the European Commission. This paper concludes that creating new monopolies capable of restricting open access to data, may result in a threat to development of an EU data market. Further, economic evidence is needed before discussing the introduction of such a new right. Indeed, we should learn from past lessons, as it happened with the Database Directive: new rights are here to stay. Other suggested approaches seem more able to fit the needs of the data-economy. In particular, sector-based access against remuneration can be an option to investigate. However, also in this case, this must come together with economic evidence and in dept analysis of possible market failures.
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Notes
- 1.
See the study commissioned by the European Commission, prepared by IDC, European Data Market study, SMART 2013/0063 (1 February 2017). See also the presentation prepared by the European Commission, Final results of the European Data Market study measuring the size and trends of the EU data economy, of 2 May 2017, available at https://ec.europa.eu/digital-single-market/en/news/final-results-european-data-market-study-measuring-size-and-trends-eu-data-economy. The data economy measures the overall impacts of the data market. It involves all types of data processing operations (i.e., generation, collection, storage, processing, distribution, analysis, elaboration, delivery, and exploitation) enabled by digital technologies. In the data economy ecosystem, there are different types of market players. The ability to access and use data enables market players to extract value from data and to create innovative applications.
- 2.
Ibid.
- 3.
Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions, Towards a Thriving Data-Driven Economy COM (2014) 442 final; Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions, A Digital Single Market Strategy for Europe COM (2015) 192 final. This initiative included a mandate to study the issue of ownership delegated to the “Free flow of data” initiative: “It will address the emerging issues of ownership, interoperability, usability and access to data in situations such as business-to-business, business to consumer, machine generated and machine-to-machine data. It will encourage access to public data to help drive innovation” (at p. 15).
- 4.
European Commission, European free flow of data initiative within the Digital Single Market—Inception impact assessment. http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_cnect_001_free_flow_data_en.pdf. The document continues stating that “a gap exists with regard to ‘ownership’ of non-personal data, particularly non-personal data that is machine-generated. Data driven innovation is greatly dependent on who has access to data collected through sensors, for instance as part of a manufacturing process, or to anonymised/non-identifiable personal data. Such issues are commonly addressed by contractual arrangements in a business to business context, which may prove to be a challenge to certain actors within the data value chain, potentially slowing down the free flow of data between sectors, companies and within companies, as well as research organisations. The contractual practices in the new business models inspired by technological developments may lead to contractual lock-in; technical or legal obstacles may prevent the switching of service provider or the portability (transfer) of data”.
- 5.
Le Monde (2016) Big data: “Pour un “code civil” des données numériques”. https://www.lemonde.fr/idees/article/2016/10/14/big-data-pour-un-code-civil-des-donnees-numeriques_5013610_3232.html; See also Drexl (2016), p. 4.
- 6.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Building a European data economy COM (2017) 9 final.
- 7.
Commission Staff Working Document on the free flow of data and emerging issues of the European Data Economy Accompanying the document Communication Building a European Data Economy SWD (2017) 2 final.
- 8.
The Commission is considering the introduction of this new right together with other initiatives such as: model contract terms; default contract rules; access against remuneration; and development of technical solutions for reliable identification and exchange of data.
- 9.
COM(2017) 9 final, p. 12.
- 10.
COM (2014) 442 final, p. 4. See also ISO/IEC 2382-1, revised by ISO/IEC 2382:2015—Information technology—Vocabulary.
- 11.
Ottolia (2017), p. 16.
- 12.
OECD (2015), p. 195.
- 13.
Normally, the most important actors are: internet service providers; IT infrastructure providers; data providers; data analytics service providers; data-driven entrepreneurs. For more details, see Bird & Bird (2017), p. 21.
- 14.
See Hugenholtz (2018), p. 1.
- 15.
Bird & Bird (2017), p. 18.
- 16.
Hugenholtz (2018).
- 17.
Drexl (2016), p. 5.
- 18.
SWD (2017) 2 final, p. 23.
- 19.
- 20.
Bird & Bird (2017), p. 22; COM (2016) 180 final.
- 21.
Zech (2015), p. 197. The problem would not be in terms of creating incentives to generate data, but rather in ensuring a fair allocation of the profits generated by analyzing the data.
- 22.
Bird & Bird (2017), p. 120.
- 23.
Bird & Bird (2017).
- 24.
SWD(2017) 2 final, p. 11.
- 25.
Particularly within an economy based on the principle of freedom to contract, opposed to data trading based on obligations to licence at certain conditions; See SWD(2017) 2 final, p. 12.
- 26.
Impact Assessment Support Study on emerging issues of data ownership, interoperability, (re)usability and access to data, and liability—SMART 2016/0030.
- 27.
SWD(2017) 2 final, p. 14.
- 28.
SWD (2017) 2 final, p. 19. The Commission’s assumption is that machine-generated and industrial data do not normally benefit from protection by other intellectual property rights as they are deemed not to be the result of an intellectual effort. See, however, Drexl (2016) on possible patent protection for data, and Hugenholtz (2018) on phonographic neighboring rights.
- 29.
Agreement on Trade-Related Aspects of Intellectual Property Rights, adopted in Marrakesh on 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C (TRIPs).
- 30.
Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971 as amended on 28 September 1979) (Berne Convention).
- 31.
World Intellectual Property Office Copyright Treaty, adopted on Dec. 20, 1996, WIPO, Doc. CRNRIDC/94 (WCT).
- 32.
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, OJ L 111 (Software Directive).
- 33.
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77 (Database Directive).
- 34.
See ex multis CJEU, Infopaq International A/S v Danske Dagblades Forening, Case C 5/08, Judgment of 16 July 2009, par. 35.
- 35.
See Recital 17 in the preamble to Copyright Duration Directive—Directive 93/98.
- 36.
See CJEU, Eva-Maria Painer v Standard VerlagsGmbH and Others, Judgment of 1 December 2011, par. 89.
- 37.
CJEU, Football Association Premier League Ltd and Others v QC Leisure and Others (C 403/08) and Karen Murphy v Media Protection Services Ltd (C 429/08), Joined cases C 403/08 and C 429/08, Judgment of 4 October 2011.
- 38.
Football Dataco & Others v Stan James Plc & Others and Sportradar GmbH & Others, [2013] EWCA Civ 27, par. 98. Similarly, in the US, in Feist (Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 111 Sup. Ct. 1282 (1991) [499 U.S. 340 (1991)]), the US Court held that: “The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original”.
- 39.
Wiebe (2016).
- 40.
See, on similar grounds, the US Copyright Office declaration, stating that they would not register works produced by animals or a machine: ‘To qualify as a work of “authorship” a work must be created by a human being’, quoting Supreme Court case Burrow-Giles Lithographic Co, 111 U.S. at 58. See US Copyright Office (2017) Compendium: Copyrightable Authorship: What Can Be Registered. https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf, p. 17. See also Ginsburg (2018) and Ramalho (2017).
- 41.
Football Dataco.
- 42.
See Section 9(3), Copyright, Design and Patents Act, U.K. 1998: ‘in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken’. See Perry and Margoni (2010).
- 43.
Hugenholtz (2018).
- 44.
CJEU, The British Horseracing Board Ltd and Others v William Hill Organization Ltd, Judgment of 9 November 2004, par. 31.
- 45.
Drexl (2016), p. 21.
- 46.
Hugenholtz (2018) citing Football Dataco & Others v Stan James Plc & Others and Sportradar GmbH & Others.
- 47.
Hugenholtz (2018).
- 48.
Banterle (2018).
- 49.
Ibid.
- 50.
SWD (2017) 2 final, p. 19.
- 51.
Drexl (2016), p. 22.
- 52.
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market COM (2016) 593 final, and Directive (EU) 2019/790 on the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
- 53.
- 54.
See European Commission website newsroom, Commission launches public consultation on Database Directive, posted on 24 May 2017. https://ec.europa.eu/digital-single-market/en/news/commission-launches-public-consultation-database-directive.
- 55.
Drexl (2016), p. 22.
- 56.
Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, OJ L 157 (Trade Secrets Directive).
- 57.
- 58.
Bird & Bird (2017), p. 110.
- 59.
Osborne Clarke (2016), p. 10.
- 60.
Drexl (2016).
- 61.
- 62.
Drexl (2016), p. 24.
- 63.
Osborne Clarke (2016), p. 11. This absence of ownership contrasts with the default position in patent and copyright law, where any rights arising in work done by an employee in the course of her employment automatically belong to the employer. Employers will not automatically be the holder of trade secrecy rights in valuable data arising from employees’ work. It will be important to provide for this in employment contracts.
- 64.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119.
- 65.
A property right includes two powers: the right to use a good and the right to exclude others from such use. Privacy rights do not include the right to use personal data (which resides in image rights, name rights, etc.), but rather the right to exclude others from using them. See Purtova (2015) and Ubertazzi (2014). See also Specht and Zerbst (2018) and Rees (2014).
- 66.
The possibility to pay services with personal data was suggested by the Proposed Digital Content Directive—Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content COM (2015) 634 final. See Metzger et al. (2018) for more details; see also Victor (2013), Purtova (2015) and Malgieri (2016).
- 67.
In the same sense, see Bird & Bird (2017).
- 68.
Sholtz (2001).
- 69.
Zeno-Zencovich (1989), p. 452.
- 70.
Zech (2016a), pp. 59–60.
- 71.
- 72.
- 73.
Resta (2011), p. 22. Intellectual property is protected by Art. 17.2 of the Charter of the Fundamental Rights of the European Union. The CJEU in Promusicae (Productores de Música de España (Promusicae) v Telefónica de España SAU, Case C 275/06, Judgment of 29 January 2008, par. 62) confirmed that “the fundamental right to property […] includes intellectual property rights”.
- 74.
Van Erp (2017).
- 75.
- 76.
Resta (2011), p. 28.
- 77.
Resta (2011), p. 45, referring to a judgment of the Court of Rome, First Instance, 31 March 2003, in Foro it., 2003, I, 1879, in relation to sport events; and the judgment of the BGH, of 25 January 1955, in BGHZ, 16 (1955), 172, which held that non-protectable know-how can, however, be subject to a general absolute right of the owner and unfair competition law protection. See, however, Hoeren (2014) for diverging case law, e.g., in the UK.
- 78.
SWD (2017) 2 final, p. 19, recalling the decision of German Bundesgerichtshof (Federal Supreme Court) of 15.11.2006 (ownership of software on a CD-ROM); and the recent decision of the same court—decision of 10 July 2015—on the transfer of ownership on the physical storage as a result of data recordings (in that case: audio recordings on a tape) would be leading to a transfer of ownership under civil law to the party that could claim rights on the data.
- 79.
CJEU, UsedSoft GmbH v Oracle International Corp, Case C-128/11, Judgment of 3 July 2012. See SWD (2017) 2 final.
- 80.
UsedSoft, par. 42.
- 81.
Drexl (2016).
- 82.
See Osborne Clarke (2016) for further details.
- 83.
See Banterle (2018).
- 84.
Drexl (2016).
- 85.
Osborne Clarke (2016).
- 86.
CJEU, Ryanair Ltd v PR Aviation BV, Case C 30/14, Judgment of 15 January 2015.
- 87.
Drexl (2016), p. 29.
- 88.
See Ottolia (2017), p. 221.
- 89.
Ibid.
- 90.
See Zech (2017).
- 91.
Ottolia (2017), p. 222.
- 92.
Except for those rights that are instrumental and necessary to use that asset.
- 93.
Ottolia (2017), p. 234.
- 94.
A data lake is a “subject-specific repository for large quantities and varieties of data, both structured and unstructured. The data lake accepts input from various sources and can preserve both the original data fidelity and the lineage of data transformations.” See European Commission (2017) Big data: a complex and evolving regulatory framework. https://ec.europa.eu/growth/tools-databases/dem/monitor/sites/default/files/DTM_Big%20Data%20v1_0.pdf.
- 95.
Zech (2017).
- 96.
For more details see Ottolia (2017), p. 272.
- 97.
SWD (2017) 2 final, p. 33; Zech (2016a).
- 98.
SWD (2017) 2 final, p. 33.
- 99.
SWD (2017) 2 final, p. 33, citing Kerber (2016), that appears to be favouring this approach.
- 100.
It would be possible for the de facto data holder to sue third parties in case of misappropriation of data. In particular, the following civil remedies would be granted: (i) the right to seek injunctions preventing further use of data by third parties who have no right to use the data; (ii) the right to have products built based on misappropriated data excluded from market commercialization; and (iii) the possibility to claim damages for unauthorized use of data. In particular, the Commission believes that the protection should not be limited so that mere dissemination of data without a real use made of the data could remain lawful [As suggested by Mattioli (2014)]. This is because such an approach would work only on the assumption that what happens de facto is already a balanced and efficient data market. Moreover, in the Commission’s view, this assumption may not be correct. In particular, it would be necessary to combine this approach with other measures to avoid consolidating de facto situations that could amount to market failures. See SWD (2017) 2 final, p. 33.
- 101.
Zech (2015), citing Eco, A Theory of Semiotics, 1978.
- 102.
SWD (2017) 2 final, p. 33; Quoting Zech (2016a). The Commission offers the following example: an e-book or a photographic image has a semantic level which is the expression of ideas or the presentation of objects or persons. Copyright covers this level of information. However, the data file of such an e-book or image is merely a representation of signs encoding such information usually requiring tools to present the information.
- 103.
Syntactic information are bits, texts, pictures—intended as a number of signs, sound recordings, or data—intended as information coded for machines.
- 104.
Zech (2015), p. 194.
- 105.
Zech (2016a), p. 75.
- 106.
Since using data by analyzing them can be done relatively quickly—Zech (2016a), p. 75.
- 107.
Zech (2016a), p. 75.
- 108.
SWD (2017) 2 final, p. 35.
- 109.
SWD (2017) 2 final, p. 35.
- 110.
- 111.
Hugenholtz (2018).
- 112.
Ibid. The risk of this situation appears to be recognized also by Prof. Zech (2015), p. 194: “Thus, the physical layer carries the syntactic layer and the syntactic layer the semantic layer.” For example, GPS sensor-generated data produced by smartphones are commonly collected by apps, transferred to third parties, and then used for computational analysis for commercial purposes (e.g., to study a particular audience in a target metropolitan area, or for developing location-based services). How is it possible to differentiate the syntactic level from the semantic layer in the data produced by the GPS sensors? The formal expression of the GPS unit/data (the code/bit) is expressed in the form of geographical coordinates associated to an identifier (e.g., IP address) and a timestamp, i.e., there is a one-to-one relationship with the semantic level (the geographical coordinates).
- 113.
Hugenholtz (2018). For instance, a database of consumer behavioral data collected from a cloud-based service, which is used to identify patterns to create customer segments, would qualify as a database protected under the sui generis database right; in some cases, as a creative database that enjoys copyright protection; but also as a machine-generated data subject to the data producer’s right (that could belong to the cloud provider). The database right was designed to avoid crossing the frontier of other IP rights; the new data producer right risks leading to extensive overlaps and result in plurilateral competing claims of ownership in the same material.
- 114.
Banterle (2018).
- 115.
Hugenholtz (2018).
- 116.
Football Dataco & Others v Stan James Plc & Others and Sportradar GmbH & Others, [2013] EWCA Civ 27, par. 98.
- 117.
Drexl (2016).
- 118.
Hugenholtz (2018).
- 119.
- 120.
European Commission (2016) Synopsis report on the contributions to the public consultation regulatory environment for data and cloud computing. https://ec.europa.eu/digital-single-market/en/news/synopsis-report-contributions-public-consultation-regulatory-environment-data-and-cloud; and Id. (2017) Synopsis report of the public consultation on building a European data economy. Available at: https://ec.europa.eu/digital-single-market/en/news/synopsis-report-public-consultation-building-european-data-economy.
- 121.
Osborne Clarke (2016), p. 86.
- 122.
Drexl (2016), p. 6.
- 123.
European Commission, Joint Research Centre (2017).
- 124.
Hugenholtz (2018).
- 125.
Zeno-Zencovich (2018), p. 3.
- 126.
- 127.
Drexl (2016).
- 128.
Osborne Clarke (2016).
- 129.
European Commission (2016) Synopsis report on the contributions to the public consultation regulatory environment for data and cloud computing. https://ec.europa.eu/digital-single-market/en/news/synopsis-report-contributions-public-consultation-regulatory-environment-data-and-cloud.
- 130.
Same conclusion reached by Osborne Clarke (2016).
- 131.
European Commission (2005) First evaluation of Directive 96/9/EC on the legal protection of databases, DG Internal Market and Services Working Paper, Brussels. http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf.
- 132.
See European Commission website newsroom, Commission launches public consultation on Database Directive, posted on 24 May 2017. https://ec.europa.eu/digital-single-market/en/news/commission-launches-public-consultation-database-directive.
- 133.
Drexl (2016).
- 134.
Surblyte (2016).
- 135.
COM (92) 24, p. 4, recital 31, Art. 8. See Banterle (2018) and the European Commission’s Explanatory memorandum to the Proposal for a Council Directive on the legal protection of databases COM (92) 24 final.
- 136.
See SWD (2017) 2 final, p. 21. Sector-specific legislation regulates the access to private non-personal data. Regulation 715/2007 regulates access to in-vehicle data for supporting the market for after-sales services—maintenance and repair (Art. 6). Data does not have to be provided for free, but under a reasonable and proportionate fee (Art. 7). The ITS Directive (Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport, OJ L 207) calls for actions to allow the sharing and exchange of transport and traffic data. The Payment Services Directive (Directive 2015/2366/EU revising Directive 2002/65/EC) also regulates access to ‘payment information’ under certain conditions, thus favoring the development of fintech industry.
- 137.
See SWD (2017) 2 final, p. 21, recalling the main conditions outlined by the CJEU for any action based on competition law principles to lead to an obligation to license the use of commercial information: (i) that the data is indispensable for the downstream product; (ii) that there would not be any effective competition between the upstream and downstream product; (iii) that refusal prevents the emergence of the second product; and (iv) there is no objective reason for the refusal. See also Drexl (2016), p. 48.
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Banterle, F. (2020). Data Ownership in the Data Economy: A European Dilemma. In: Synodinou, TE., Jougleux, P., Markou, C., Prastitou, T. (eds) EU Internet Law in the Digital Era. Springer, Cham. https://doi.org/10.1007/978-3-030-25579-4_9
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