Data ownership in the data economy: A european dilemma

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.