This Supplementary Paper is based on and complements the findings detailed in the White Paper on "Data Ownership" of 1 January 2017 published by Bird & Bird on 6 February 2017. It also follows the Communication on "Building a European Data Economy" and the associated Staff Working Document published by the EU Commission on 10 January 2017. In its Communication, the EU Commission notably suggests that Europe is not tapping into the potential of data for business, research and innovation purposes. In this context, the EU Commission launched a public consultation that runs until 26 April 2017. It has the objective of collecting information on four main topics: (i) free flow of data, (ii) data access and transfer, (iii) liability and (iv) portability.
The above-mentioned White Paper and this Supplementary Paper focus on data access and transfer.
Main findings of the White Paper
Our White Paper establishes that the existing legal framework in the EU is not optimal and does not sufficiently facilitate operations on or including data.
In the same vein, it is concluded that the cumulative implementation of the current maze of different possibly applicable legislations is a significant hurdle to the uptake of data analytics in the EU and is creating legal uncertainty in this fast-growing market. It results from this situation that those involved in the data value cycle may currently hold back on data sharing initiatives and presently have no choice but to rely on contractual arrangements to manage their rights in data. While relying on contracts may seem to provide greater flexibility to the contracting parties, it was found that this nevertheless comes with various difficulties.
In particular, the lack of harmonisation of contract law in the EU, but also the limits of contractual arrangements towards third parties and the issues related to the validity of data-related agreements, create a high legal uncertainty that affects all data flows and the entire data value chain at large.
It is therefore concluded that such situation is not sustainable in a data driven economy, especially with the fast-increasing development and adoption of data mining and analysis tools.
Against a background where the EU strives towards a data-driven environment in which both citizens and companies can reap the benefits of novel data technologies, but also against a background where the current legal framework does not sufficiently tackle all the issues related to data and where actors involved in the data value chain have no certainty as to the ownership of the data they have gathered, created, analysed, enriched or otherwise processed, we conclude that a more solid and legally secure solution is needed.
The final chapter of the White Paper suggested the creation of a nonexclusive, flexible and extensible ownership right in data(sets), with a data traceability obligation as a safeguard. Such chapter discussed some of the specificities of said right and obligation, their interaction with the other existing rights in data, their incidence on civil law, and their possible reflection in contractual arrangements.
This Supplementary Paper aims to further detail the main features of the proposed new EU right in data. The paper is the result of intense discussions with scholars, practitioners, industry representatives and policy makers in both the EU and the United States.