Towards a Holistic Regulatory Approach for the European Data Economy: Why the Illusive Notion of Non-Personal Data is Counterproductive to Data Innovation

Abstract

The European Data Economy initiative is built on the belief that the current regulatory environment is not adequate in order to unleash the potential of such data-driven economy. The initiative focuses on so-called ‘non-personal data’ as a way to complement data protection rules that regulate the processing of personal data. The article illustrates that the notion of non-personal data as starting point for new data innovation policies is counterproductive for three fundamental reasons: (1) datasets are often mixed and the boundaries of personal data are too fluid to act as regulatory anchor; (2) two separate regimes applicable to opaque datasets might lead to strategic behavior of firms exploiting regulatory rivalry; (3) data has economic value irrespective of its legal classification, and there is no evidence that an elusive zone of non-personal data is more essential as innovation input. We argue that a holistic approach to ‘data’ as such, which a priori incorporates data protection considerations in its design is more likely to deliver successful innovation policy.

Keywords: innovation, intellectual property, data protection law, data portability, Digital Single Market

JEL Classification: K11, K20, L43, O34, O38