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

18 Pages Posted: 28 Sep 2018

See all articles by Inge Graef

Inge Graef

Tilburg Law School

Raphael Gellert

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Martin Husovec

Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Date Written: September 27, 2018

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

Suggested Citation

Graef, Inge and Gellert, Raphael and Husovec, Martin, Towards a Holistic Regulatory Approach for the European Data Economy: Why the Illusive Notion of Non-Personal Data is Counterproductive to Data Innovation (September 27, 2018). TILEC Discussion Paper No. 2018-029. Available at SSRN: https://ssrn.com/abstract=3256189 or http://dx.doi.org/10.2139/ssrn.3256189

Inge Graef (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Raphael Gellert

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Martin Husovec

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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