Intellectual property and data protection
Guernsey has a robust and extensive suite of intellectual property laws, including certain rights not available in many other jurisdictions.
Potentially of particular relevance to fintech business models is the Guernsey database right. In Guernsey (in addition to any copyright subsisting in a database), databases are protected under the Database Rights (Bailiwick of Guernsey) Ordinance 2005 (the Database Ordinance).
A database is defined under the Database Ordinance as 'a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means', a wide definition covering a range of data-holding structures. A database right protects the compilation of information comprising the data and subsists where there has been a substantial investment in the collation of the contents of the database.
Database rights, like other property rights, can be sold, licensed or assigned to third parties. A database is often a valuable asset that businesses are increasingly looking to exploit in their own right.
Similar to copyright, a database right is an automatic right and subsists from the moment the database is created in a recorded form. Database rights last for a period of 15 years from the end of the calendar year in which the database was completed. Where a database is made available to the public before the end of the 15-year period, the protection period will be extended by a further 15 years from the end of the calendar year in which it was first made publicly available. Additionally, if there is a substantial change to the contents of the database then the 15-year protection period recommences. In effect, this means that an indefinite term of protection is available for many databases that are continually updated.
Other more typical intellectual property rights and protections such as copyright, patents and trademarks are all also available in Guernsey as well as the world's first registerable image right. Typically, Guernsey intellectual property laws provide a presumption that intellectual property rights developed by an employee in the course of their employment belong to the employer (this is the case for patent, copyright and database rights, among others) subject to rebuttal by reference to specific factual differences.
From a data protection perspective, Guernsey is one of a small number of jurisdictions historically deemed to have an equivalent data protection regime to the European Union. To maintain this status following the General Data Protection Regulation, the DPGL was enacted.
The DPGL deals with duties of data controllers (including the data protection principles), duties of data processors, conditions for processing, obligations to appoint data protection officers, rights of data subjects, exemptions to parts of the law, cross-border transfers and exemptions to the adequacy requirements and remedies and enforcement. The DPGL largely mirrors the EU position and the rules around digital profiling are similar to those in the EU.
The DPGL established the office of the Data Protection Authority in Guernsey, and includes powers allowing it to investigate complaints and undertake inquiries along with granting it powers of sanction following a finding of a breach (including fines). Owing to the similarity of Guernsey law to EU law in this area, the approach of the Data Protection Authority in Guernsey in enforcing the law and treatment of certain technologies and uses of data (such as profiling) is likely to be similar to that employed by European data protection regulators (and indeed the UK Information Commissioner's Office post-Brexit). European case law and enforcement actions will likely be influential.