The European Commission aims to create a single market for data. In a recent strategy paper that is both polemical about values and shrewd about economics, the Commission outlines its vision for data, the current issues it faces and how it will deal with them.
A “European Way”
A major theme in the paper is balance, particularly that between personal data rights and economic growth. The paper acknowledges that data must be collected and used in accordance with European values, fundamental rights and rules. However, it is quick to point out that non-personal data is a promising source of growth to be exploited.
The Commission contrasts its own vision against the United States, which relies on the private sector for management and leadership, and China’s government-controlled approach, which leaves people without sufficient safeguards- “[i]n order to release Europe’s potential we have to find our European way, balancing the flow and wide use of data, while preserving high privacy, security, safety and ethical standards”.
As well as liberal values, there is hard economics here. In setting itself apart from both the US and China, the Commission intends to compete against them. The strategy paper is polemic at times:
“The volume of data produced in the world is growing rapidly, from 33 zettabytes in 2018 to an expected 175 zettabytes in 2025 (see IDC 2018). trends indicate that the winners of today will not necessarily be the winners of tomorrow. But the sources of competitiveness for the next decades in the data economy are determined now. This is why the EU should act now.”
One of the most profound ways in which it has determined to act is to make data available to all, “whether public or private, big or small, start-up or giant”. The Commission hopes this will give society a “digital dividend”, by increasing innovation and competition. It intends that by 2030, the EU’s “share of the data economy at least corresponds to its economic weight” to which it adds, “not by fiat but by choice.”
Not by fiat but by choice?
It is clear that the Commission sees shared and freely available data as integral to its strategy. It is also clear that it wants to do so while preserving people’s rights and maintaining economic competition. These aims are ambitious and possibly even conflicted. How will it create a single market for data, in which there is “easy access to an almost infinite amount of high-quality industrial data”, without forcing companies to give up their data?
The Commission says it will create “an attractive policy environment”, which implies that it will not resort to legislative compulsion. Incentives, investment and light-touch regulation may work with small companies, who stand to gain more than they lose from sharing. But incentives are going to have to be huge to make it an attractive proposition for the likes of Amazon, Google and Facebook. Perhaps, then, the Commission plans on using sticks as well as carrots?
The paper is scant on detail, but tell us that legislation is to come, most likely in 2021, including a Data Act and an implementing act on high-value data-sets. It also tells us that the Commission will invest in “data sharing architectures […] and governance frameworks”. This is vague and leaves room for legislative coercion, which it hints at on the matter of the right to data portability.
Article 20 GDPR gives people the right to ask for and receive data concerning them from a controller, such as Amazon or Facebook, and to share it with another controller. The Commission says it will explore how this right can be “enhanced”. This is unlikely to make for an attractive policy environment for tech giants. Nor are the possible effects any Data Act or implementing act could have on their intellectual property rights.
IP in Data
The UK Copyright and Rights in Databases Regulations 1997 implements the EU Database Directive 96/9/EC and enshrines property rights in databases. A database may be protected as a species of literary work, if sufficient creativity has gone into its making. For databases that do not meet this threshold, the Regulations provide a back-up: property rights will subsist if there has been substantial investment in obtaining, verifying or presenting the contents of the database. Creative databases are only protected so far as their organisation and structure, not their contents. Non-creative databases are completely protected, contents and all.
It will be worth keeping an eye on how the Commission’s proposals affect these rights and associated regulations. It may prove to be a source of conflict between Member States and business on the one hand, who wish to preserve intellectual property rights in data, and the Commission, which wants “easy access to an almost infinite amount of high-quality industrial data”. In this case, it is hard to see how the Commission will meet its ambitious legislative targets within two years and eventually create a single market, and do all of this by choice, not fiat.