No One Owns Data

55 Pages Posted: 23 Feb 2018 Last revised: 7 Aug 2018

See all articles by Lothar Determann

Lothar Determann

Baker & McKenzie LLP; Freie Universität Berlin; Berkeley School of Law; University of California Hastings College of the Law

Date Written: February 14, 2018

Abstract

Businesses, policy makers, and scholars are calling for property rights in data. They currently focus particularly on the vast amounts of data generated by connected cars, industrial machines, artificial intelligence, toys and other devices on the Internet of Things (IoT). This data is personal to numerous parties who are associated with a connected device, for example, the driver of a connected car, its owner and passengers, as well as other traffic participants. Manufacturers, dealers, independent providers of auto parts and services, insurance companies, law enforcement agencies and many others are also interested in this data. Various parties are actively staking their claims to data on the Internet of Things, as they are mining data, the fuel of the digital economy. Stakeholders in digital markets often frame claims, negotiations and controversies regarding data access as one of ownership. Businesses regularly assert and demand that they own data. Individual data subjects also assume that they own data about themselves. Policy makers and scholars focus on how to redistribute ownership rights to data. Yet, upon closer review, it is very questionable whether data is—or should be—subject to any property rights. This article unambiguously answers the question in the negative, both with respect to existing law and future lawmaking, in the United States as in the European Union, jurisdictions with notably divergent attitudes to privacy, property and individual freedoms. Data as such, i.e., the content of information - exists conceptually separate from works of authorship and data bases (which can be subject to intellectual property rights), physical embodiments of information (data on a computer chip, which can be subject to personal property rights; warning symbol painted on a road, which can be subject to real property rights) and physical objects or intangible items to which information relates (e.g., a dangerous malfunctioning vehicle to which the warnings on road markings or a computer chip relate). Lawmakers have granted property rights to different persons regarding works of authorship, data bases, chattels, land and other items for the purpose of incentivizing investments and improvements in such items, a purpose that does not exist with respect to data as such. Individual persons, businesses, governments and the public at large have different interests in data and access restrictions. These interests are protected by an intricate net of existing laws that deliberately refrain from granting property laws in data. Existing property laws intentionally exclude data from subject matter definitions. Existing data-related laws and property laws balance interests in data and access restrictions based on public policy considerations that would be impaired by a creation of property rights in data. New property rights in data are not suited to promote better privacy or more innovation or technological advances, but would more likely suffocate free speech, information freedom, science and technological progress. The rationales for propertizing data are thus not compelling and are outweighed by the rationales for keeping the data “open.” No new property rights need to be created for data. The article begins with a brief review of the current landscape of the Internet of Things notes explosive growth of data pools generated by connected devices, artificial intelligence, big data analytics tools and other information technologies. Part 1 lays the foundation for examining concrete current legal and policy challenges in the remainder of the article. Part 2 supplies conceptual differentiation and definitions with respect to “data” and “information” as the subject of rights and interests. Distinctions and definitional clarity serve as the basis for examining the purposes and reach of existing property laws in Part 3, including real property, personal property and intellectual property laws. Part 4 analyzes the effect of data-related laws that do not grant property rights. Part 5 examines how the interests of the various stakeholders are protected or impaired by the current framework of data-related laws to identify potential gaps that could warrant additional property rights. Part 6 examines policy considerations for and against property rights in data. Part 7 concludes that no one owns data and no one should own data.

Keywords: data, personal data, property, ownership, privacy, copyrights, data base directive, general data protection regulation, eu law, united states law, policy, big data, autonomous cars, analytics

JEL Classification: K

Suggested Citation

Determann, Lothar, No One Owns Data (February 14, 2018). UC Hastings Research Paper No. 265. Available at SSRN: https://ssrn.com/abstract=3123957 or http://dx.doi.org/10.2139/ssrn.3123957

Lothar Determann (Contact Author)

Baker & McKenzie LLP ( email )

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Freie Universität Berlin ( email )

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Berkeley School of Law ( email )

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University of California Hastings College of the Law ( email )

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San Francisco, CA 94102
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