IP Law and Policy for the Data Economy in the EU

Abstract

The current policy vision for Europe's digital future centres around facilitating the availability of data by means of data access, sharing, and portability rights. In the existing legal framework, such rights are already foreseen in different legal instruments. In actual practice, however, (horizontal) data sharing is governed in the first place by contracts. Currently, well-established business practices and non-mandatory model contract terms are lacking. To reduce transaction costs and chilling effects in the sector, the main task would therefore be to provide a set of non-mandatory default rules or soft-law model contracts. The database maker's sui generis right or trade secrets protection, mainstays of this area, have the potential to aggravate access problems and hamper efficient access and portability regimes. While the Trade Secrets Directive as a very modern and necessarily flexible instrument, on principle, is rather well-equipped for achieving balanced results, the Database Directive is in imminent need of reform, in particular as even the Data Act Proposal leaves many issues of the database sui generis right unsolved.