ERA SUMMER COURSE ON DATA PROTECTION - White Paper Ownership of Data (Final) | Analytics | Big Data

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ERA SUMMER COURSE ON DATA PROTECTION - White Paper Ownership of Data (Final)
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  Building the European Data Economy Data Ownership WHITE PAPER 1 January 2017Benoit Van AsbroeckJulien DebusscheJasmien César  Data Ownership 2  / 142 Legal Notice This paper was written within the European Union TOREADOR project (“TrustwOrthy model-awaRE Analytics Data platfORm””). Granting authority: European Union. Call: H2020-ICT-2015. Topic: ICT-16-2015 (Big data -research). Type of action: RIA. Grant agreement no.: 688797, Starting date: 1 st January 2016, Ending date: 31 st December 2018.This paper reflects the views only of the authors, and not those of the Commission, Bird&BirdLLP or the other consortium members. The Commission, Bird&BirdLLP and the other consortiummembers cannot be held responsible for any use that may be made of the information contained herein.This paper is a report on the current state of the law and not a prospective study (although it may include some critical view and prospective ideas). Accordingly, this paper does not represent a final state of mind of its authors; it only intends to encourage discussion on the topics covered.We wish to thank the persons who provided critical insights and guidance for various parts of the paper, in particular (in alphabetical order): Layla Bakker, Alexander Benalal, Anne Federle and Natalia Zebrowska.  Data Ownership 3  / 142 Executive Summary The EU Commission has voiced on multiple occasions the most important legal issues in a data environment. In its data-driven economyCommunication of July 2014, but also more recently in the context of its 2016 free flow of data initiative, it highlighted that barriers to the free flow of data are caused by the legal uncertainty surrounding the emerging issues on 'data ownership' or control, (re)usability and access to/transfer of data and liability arising from the use of data . In this context, the present report examines the data ownership and data sharing aspects from a legal perspective, looking at the current EU acquis . In particular, the research has been performed in a commercial context, relying on the concrete circumstances of the TOREADORbig data analytics projectand its four use-cases. 1 The results of our research are not only aimed at the partners of the aforementioned project, but also strive to provide additional evidence to policymakers on the emerging issues of data ownership. This report provides an overview of the EU acquis in relation to data management and in particular onaccess to, ownership, exploitation or exchange of data. To this end, we provide a diagram with a snapshot of the current EU framework. Such mapping demonstrates the various categories of EU legislation related to data and potentially playing a role with respect tothe possible ownership of data, but also with respect to the restrictions and requirements that may apply in relation to certain types of behaviours orcertain types ofdata. More specifically, ourin-depth analysis has allowed concluding the following:  There isat present no EU legislation that specifically regulatesthe question of ownership in data. Such absence of ownership-related legislation does however not exclude the fact that there are numerous legislationsthat have an impact on data or that may confer some kind of protection to certain types of data or on datasets ( i.e. , copyright, database rights andtrade secrets).  The case-law at EU level does not recognise explicitly an ownership right in data. However, according to some authors, the Court of Justice of the EU opened the door for a discussion on ownership in intangible assets in its UsedSoft   judgment issued on 3 July 2012. Despite such ruling and the possible interpretation deriving from it, a high legal uncertainty remains. 1 TOREADOR is a big data EU research and innovation project funded by the European Commission: http://www.toreador-project.eu/.  Data Ownership 4  / 142  While it was found that at national level there are also no legislations relating to data ownership, the existing case-law in some Member States addresses, to some extent, the issue of data ownership. In the same vein, in some countries, legal scholars debate the question of ownership in data, suggestinga novel interpretation of existing civil law provisions.  While the protection of individuals' privacy has triggered a lot of attention in the past months with the adoption of the General Data Protection Regulation, this report does not examine in depth the issues related to privacy and data protection. This being said, this report takes an approach whereby ownership is examined in relation to data, be it non-personal or personal data. Although some scholars suggest otherwise, we take the position that personaldatais not necessarily owned by the individual and thus that an ownership right in data fordata controllers or processorscannot be excluded. Such ownershipwould however besubject to theindividual's control over his/herpersonal data.  There has been a lot of attention fromantitrust regulators and scholars for the various legal issues surrounding data and competition law. In particular, the difficulty lies in the fact that antitrust regulators still apply the legal principles of the nuts-and-bolts world to a reality in which dataare the new corporate assets.Even though some solutions emerge in the framework of competition law, a lack of legal certainty remains in relation to keycompetitionlaw notions and their practical implementation in the data-driven economy.  Numerous legislations that may impact a company's control of, the access to, or the rights in data were identified. Suchlegislations regulate data sharing obligationsin various waysanddepending on various factors, such as the sector concerned or the reasons of public interest that have led to the adoption of the instrument ( e.g. , public security, public health, consumer protection, etc.). However, such legislations remain mute on the ownership in the data concerned.  The ownership-like rights currently available are limited to intellectual property rights and trade secrets. However, none of these allow providing an adequate protection of (ownership in) data. With respect to copyright, while there are several features that can be seen as beneficial for the protection of data ( e.g., long-term protection, broad exclusive rights, disclosure of data permitted), there are numerous disadvantages that hinder the protectionof data by copyright ( e.g. , srcinality requirement, territoriality, exclusivity). As regards database rights, it is difficult for the current data economy to accommodate the dual protectionin the EU(copyright and sui generis ). On the one hand, the copyright protection on the structure has become moot. On the other hand, the sui generis protection awarded for the investment does not protect the data as
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