Abstract
Efforts to reconcile the tension between personal data (protection) law and intellectual property law remains contentious. This Chapter explores the nature of personal data in intellectual property. The growing value of personal data has, over the past decade, begun to lend itself to question whether this data contains a level of intellectual property. However, to demonstrate whether intellectual property exists in personal data, there are key principles and concepts within the current day data protection laws that also need to be considered. The concept of consent and the definition of personal data within the law, become very important because they determine the level of control and subsequently the level over ownership data subject wills have of their personal data. More recently, the European Union have arguably strengthened the possibility that personal data contains intellectual property as a result of the introduction of the right to data portability.
This Chapter explores whether personal data, defined by current day national data protection and privacy laws, constitute intellectual property, or ought to do so. It also considers whether the personal data of an individual ought to be subject to a privacy right, and justifiably extended to being an intellectual property right. The Chapter will show how the current definition of personal data, the concept of consent, the right to data portability, and the right to access personal data in national and supranational laws, is steering personal data towards having an intellectual property right. The Chapter will also highlight how neither individual states nor the EU have excluded intellectual property from personal data within their respective data protection laws. Along with the remainder of the book, the Chapter also highlights that the internationalization of the Internet and its supporting infrastructures requires an international response to data protection and privacy rights through legal harmonization across jurisdictions. It stresses how recent case law in different jurisdictions have afforded greater protection to personal data, including through intellectual property rights.
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Notes
- 1.
Zittrain, J What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication, 52 Stanford Law Review (2000) p. 1203. Zittrain is discussing how the music industry moved from being vulnerable to developing technological systems that could the intellectual property of those that make music.
- 2.
Trakman., L, Walters., R Bruno, Zeller B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming 2018
- 3.
Lemley, M Private Property: A Comment on Professor Samuelson’s Contribution, 52 Stanford Law Review (2000).
- 4.
Tene O., Polonetsky., J Big Data for All: Privacy and User Control in the Age of Analytics, 11 Nw. J. Tech. & Intell. Prop. 239 (2013).
- 5.
Singh, Protecting Personal Data as a Property Right, ILI Law Review (2016).
- 6.
Ibid.
- 7.
Ibid, in 1996, the European Parliament and Council adopted the Directive 96/9/EC19 for legal protection of databases. To implement the provisions of this Council Directive, Statutory Instrument 1997 No. 3032, the Copyright and Rights in Databases Regulations, 1997, was approved by a resolution of the Houses of the Parliament. These regulations give effect to the Directive 96/9/EC recognizing sui generis right protecting databases in England and Wales. A database right exists in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database even if the work fails to satisfy the threshold of originality. A database right is, therefore, separate from, and in addition to, a copyright which may exist in a database. Regulation 16 makes extraction or reutilization of all or substantial part of a database, without the consent of the owner thereof as an infringement of database right.
- 8.
[2013] EWHC 3060 (Ch).
- 9.
Ibid.
- 10.
Singh, A Protecting Personal Data as a Property Right, ILI Law Review (2016).
- 11.
Ibid.
- 12.
Ibid.
- 13.
Laudon, K“Markets and Privacy”, 39 (9) Communications of the ACM, 92–104 (1996).
- 14.
Ibid.
- 15.
AIR 1996 SC 2082.
- 16.
Ibid
- 17.
Chrobak, L, Propietary Rights in Digital Data? Nromative Perspectives and Principles of Civil Law, in Mor BakhoumBeatriz Conde GallegoMark-Oliver MackenrodtGintarė Surblytė-Namavičienė, Personal Data in Competition, Consumer Protection and Intellectual Property Law Towards a Holistic Approach?MPI Studies on Intellectual Property and Competition Law, Springer (2018).
- 18.
Merges, P, Menell, P, Lemley, M Jorde, T, Intellectual Property in the new Technological Age, New York: Aspen Law & Business (1997), pp. 11–20
- 19.
Ibid.
- 20.
Ibid.
- 21.
Glancy, D Santa Clara Personal Information as Intellectual Property, https://www.law.berkeley.edu/files/bclt_IPSC2010_Glancy2.pdf, accessed 14 May 2018. The article recounts a thought experiment into what recognition of personal information as intellectual property might look like.
- 22.
Ibid.
- 23.
Ibid.
- 24.
Ibid.
- 25.
Ibid.
- 26.
Samuelson, P Privacy As Intellectual Property? Stanford Law Review Vol. 52:1125 (2000).
- 27.
Ibid.
- 28.
Ibid.
- 29.
Malgieri, G User-provided personal content’ in the EU: digital currency between data protection and intellectual property, International Review of Law, Computers & Technology, 32:1, (2018) pp. 118–140.
- 30.
Ibid.
- 31.
Ibid, user-provided data are the only piece of information that is explicitly recognized as ‘commodifiable’ as a kind of digital good of individuals. Indeed, on the one hand, it is the only set of personal data that can be ‘ported’ from one platform to another. It is the only kind of (personal) data that the (proposed) law would consider a legitimate counter-performance other than money for the provision of digital content.
- 32.
Schwartz, P Property, Privacy, and Personal Data, Harvard Law Review, vol 117, No 7 (2004). Susan Rose-Ackerman’s definition, an “inalienability” is “any restriction on the transferability, ownership, or use of an entitlement. Susan Rose-Ackerman, Inalienability, in The New Palgrave Dictionary of Economics and the Law, Yale Law School Faculty Scholarship (1985) p. 268.
- 33.
Karki, M, Personal Data and Privacy and Intellectual Property, Journal of Intellectual Property Rights, Vol 10, (2005) pp. 58–64.
- 34.
Lessig, L Code and Other Laws of Cyberspace, New York, Basic Books (1999).
- 35.
Ibid.
- 36.
Litman, J “Information Privacy/Information Property”, Stanford Law Review, No 52, (2000) p. 1295.
- 37.
Ibid, p. 1283.
- 38.
Schwartz, P Property, Privacy, and Personal Data, Harvard Law Review, vol 117, No 7 (2004). Susan Rose-Ackerman’s definition, an “inalienability” is “any restriction on the transferability, ownership, or use of an entitlement. Susan Rose-Ackerman, Inalienability, in The New Palgrave Dictionary of Economics and the Law, Yale Law School Faculty Scholarship (1985) p. 268.
- 39.
Ibid.
- 40.
Litman, J “Information Privacy/Information Property”, Stanford Law Review, No 52, (2000).
- 41.
Calabrese, G., Melamed, A “Property rules, liability rules, and inalienability: one view of the cathedral”, Harvard Law Review, 1972, No 85.
- 42.
Ibid.
- 43.
Agre, P., Rotenberg., M, Technology and Privacy: The New Landscape, Cambridge, MIT Press, (1997).
- 44.
Solove, D “Privacy and Power: Computer Databases and Metaphors for Information Privacy.”, Stanford Law Review, No 53, (2001) pp. 1440 - 1446
- 45.
Litman, J “Information Privacy/Information Property”, Stanford Law Review, (2000), No 52, pp. 1295–1296.
- 46.
Ibid.
- 47.
Schwartz, P Property, Privacy, and Personal Data, Harvard Law Review, vol 117, No 7 (2004).
- 48.
Ibid.
- 49.
Karanasiou A, Douilhet, E Never Mind the Data: The Legal Quest over Control of Information & the Networked Self, http://eprints.bournemouth.ac.uk/23392/1/PID4084429%20%285%29.pdf, accessed 24 April 2018.
- 50.
Ibid.
- 51.
Ibid.
- 52.
Organization for the Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data 2013. http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm, accessed 20 February 2018.
- 53.
Trakman., L, Walters., R Bruno, Zeller B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming 2018
- 54.
Ibid.
- 55.
See Council Regulation (EU) 2016/679, General Data Protection Regulation, Article 7(4) affirms that the consent is not freely given if it is conditional. Article 6 requires that processing of personal data is to be lawful only if and to the extent that at least one of the following criteria applies: the data subject has given consent to the processing of his or her personal data for one or more specific purposes. Consent in Australia is conceived broadly. There is no direct requirement or pre-requisite for collecting personal data or information from a data subject. However, for ‘sensitive information’ a person’s consent must be provided. The Australian Privacy Principles (APPs) require that personal information should be collected directly from the individual, unless the individual has consented to collection from other sources, or if it is authorized by law. The APPs define consent as ‘express consent or implied consent. Section 13 of Singapore’s Personal Data Protection Act 2012, provides for a form of implied (deemed) consent, and prohibits organizations from collecting, using or disclosing an individual’s personal data unless the individual gives, or is deemed to have given, his consent for the collection, use or disclosure of personal data.
- 56.
See Regulation (EU) 2016/679 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 (General Data Protection Regulation) [2016] OJ L 119/1, Article 4, sub (1).
- 57.
Ibid.
- 58.
Ibid.
- 59.
Janeček, V Ownership of personal data in the Internet of Things Computer Law & Security Review (2018).
- 60.
Ibid.
- 61.
Lundqvist, B Big Data, Open Data, Privacy Regulations, Intellectual Property and Competition Law in an Internet-of-Things World: The Issue of Accessing Data, in Mor BakhoumBeatriz Conde GallegoMark-Oliver MackenrodtGintarė Surblytė-Namavičienė, Personal Data in Competition, Consumer Protection and Intellectual Property Law Towards a Holistic Approach?MPI Studies on Intellectual Property and Competition Law, Springer (2018).
- 62.
Janeček, V Ownership of personal data in the Internet of Things Computer Law & Security Review (2018).
- 63.
Trakman., L, Walters., R, Bruno, Zeller, B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming 2018
- 64.
Ibid.
- 65.
Ibid.
- 66.
Ibid, Article 15. Recital 63 provides some protection for controllers concerned about revealing trade secrets or intellectual property, which may be particularly relevant in relation to profiling. It says that the right of access ‘should not adversely affect the rights or freedoms of others’. However, only under rare circumstances should these rights outweigh individuals’ rights of access; controllers should not use this as an excuse to deny access or refuse to provide any information to the data subject. These rights should be considered in context and balanced against individuals’ rights to have information. Recital 63 also specifies that where possible, the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to his or her personal data.
- 67.
Privacy Act 1988, Sub- Division 3
- 68.
Trakman., L, Walters., R Bruno, Zeller B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming 2018
- 69.
Coogan v News Group Newspapers Ltd [2012] EWCA Civ 48, [2012] 2 WLR 84, [2012] EMLR 14, [2012] 2 All ER 74.
- 70.
Ibid.
- 71.
Ibid.
- 72.
Ibid.
- 73.
Price v. Hal Roach Studios, Inc., 400 F. Supp. 836 (S.D.N.Y. 1975).
- 74.
Ibid, para 1-01.
- 75.
Ibid.
- 76.
Ibid.
- 77.
Trakman., L, Walters., R Bruno, Zeller B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming 2018.
- 78.
Ibid.
- 79.
Ibid.
- 80.
Ibid.
- 81.
Gordley, J Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (OUP 2006) 49.
- 82.
Akkermans, B The Principle of Numerus Clausus in European Property Law Intersentia (2008).
- 83.
Janeček, V Ownership of personal data in the Internet of Things Computer Law & Security Review (2018).
- 84.
Ibid.
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Akkermans, B The Principle of Numerus Clausus in European Property Law Intersentia (2008)
Calabrese, G., Melamed, A “Property rules, liability rules, and inalienability: one view of the cathedral”, Harvard Law Review, 1972, No 85.
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Laudon, K“Markets and Privacy”, 39 (9) Communications of the ACM, 92–104 (1996)
Lemley, M Private Property: A Comment on Professor Samuelson’s Contribution, 52 Stanford Law Review (2000)
Lessig, L Code and Other Laws of Cyberspace, New York, Basic Books (1999)
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Merges, P, Menell, P, Lemley, M Jorde, T, Intellectual Property in the new Technological Age, New York: Aspen Law & Business (1997), pp. 11–20
Samuelson, P Privacy As Intellectual Property? Stanford Law Review Vol. 52:1125 (2000)
Schwartz, P Property, Privacy, and Personal Data, Harvard Law Review, vol 117, No 7 (2004).
Singh, A Protecting Personal Data as a Property Right, ILI Law Review (2016)
Solove, D “Privacy and Power: Computer Databases and Metaphors for Information Privacy.”, Stanford Law Review, No 53, (2001) pp. 1440–1446
Tene O., Polonetsky, J Big Data for All: Privacy and User Control in the Age of Analytics, 11 Nw. J. Tech. & Intell. Prop. 239 (2013)
Trakman, L, Walters, R Bruno, Zeller B Is Privacy and Personal Data set to become the new Intellectual Property? International Review of Intellectual Property and Competition Law, forthcoming (2019)
Zittrain, J What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication, 52 Stanford Law Review (2000) p. 1203
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Walters, R., Trakman, L., Zeller, B. (2019). Intellectual Property. In: Data Protection Law. Springer, Singapore. https://doi.org/10.1007/978-981-13-8110-2_12
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