The ubiquity and increasing value of data in commerce and industry has pointed out the lack of coherence of treatment of data in national laws, let alone harmonisation (other than in respect of data privacy and, in future, trade secrets) between different Member States. This lack of coherence makes it difficult for businesses to manage their data efficiently: entrepreneurs need to be extremely careful when giving others access to their data, or else they risk losing their control over their data.
As there is no comprehensive legislation available, the businesses have to draft their contracts especially carefully, even if the shared data is not connected to intellectual property rights or trade secrets, such as the industrial production data or data from sensors. Sometimes this leads to businesses not sharing the data at all. As a result, any business based upon generating, collecting and exploiting data currently needs to take extreme care in both defining and obtaining the rights necessary for the uses it proposes to make of the data, which leads, among other things, to higher legal costs. These problems are multiplied when a business operates across borders, because of different rules.
The European Commission supported Legal Study on Ownership and Access to Data looked at existing legal instruments and landscape affecting commercial operator’s access to and rights over data. Besides the comprehensive EU legislative framework on protection of personal data, it predominantly considered the current EU regime which affects access to and ownership of data.
The study gives a useful overview of legislation in some Member States and regions on access to and rights over data (EU law, laws of England & Wales, France, Germany and Spain, including analysis of relevant case law, academic discussions and examples of contractual solutions). Additionally, the review includes a detailed discussion of the Trade Secrets Directive, relevant intellectual property laws, competition law and sector-specific laws which govern access to data.
The findings of this study are essential for the Commission's upcoming Communication on "Building a European Data Economy" scheduled for January 2017. Moreover, the findings will be used in the Staff Working Document accompanying the Communication.
With this forthcoming initiative on the challenges of the European data economy, the Commission wants to prepare the ground for a wider discussion on potential legal uncertainties surrounding access to and re-use of data in the context of data-driven and autonomous processes.