Lessons From IP Markets for Data Markets. On Moral Rights, Property Rules, and Resale Royalties
Intellectual Property Quarterly 45-67 (2018)
Posted: 18 Feb 2018
Date Written: February 18, 2018
IP law offers manifold insights to the current debate on the optimal regulatory environment for markets in personal data. This article contributes to this transdisciplinary debate by making three novel interventions. First, it shows that IP rights and personal data are comparable not only with respect to their theoretical foundations, but also in light of recent empirical studies from the US and the EU about user attitudes and valuations of the respective rights. On this basis, second, the article explores how far the interlinked system of property, liability and inalienability rules in existing IP law offers a blueprint for the contested regulation of markets in personal data. In both fields, the interests of control, access, and adequate compensation have to be balanced. In the digital economy, control is increasingly illusory; therefore, the question of adequate compensation to users for data they share becomes ever more relevant. Hence, third, the article proposes transplanting the artists’ resale right from copyright law to guarantee users a fair share in the value of their personal data as it unfolds over time. Overall, the article shows that a careful analysis of the similarities, and differences, between IP rights and personal data can make a meaningful contribution to the pressing question of control, access and compensation in the digital economy.
Keywords: data protection law, intellectual property, liability rules, property rules, comparative law, empirical legal studies, valuation of personal data
JEL Classification: K11, K12
Suggested Citation: Suggested Citation