Data Producer's Right and the Protection of Machine-Generated Data
72 Pages Posted: 23 Oct 2018 Last revised: 26 Jun 2019
Date Written: October 22, 2018
In a data-driven economy, there is enormous value in the data generated and collected by humans and machines—both consciously and subconsciously. With the arrival of big data analytics, data have also become highly valuable for uses other than what data producers or collectors initially intended. In view of the fast-growing value and multifaceted uses of data, the European Commission proposed to create a new data producer's right for nonpersonal, anonymized machine-generated data in October 2017. This proposal has since been heavily criticized by legal commentators and consumer advocates.
Thus far, the discussion on the proposed data producer's right has been limited to the European Union. Nevertheless, the United States has actively explored policies in response to changes in the data-driven economy and the growing significance of machine-generated data. Intellectual property developments in the European Union also frequently travel across the Atlantic to affect legislative and policy debates in the United States. Given the potential for the current EU proposal for a new data producer's right to eventually emerge on U.S. soil, this article takes a preemptive approach of critically examining the proposal before it begins to gain traction on this side of the Atlantic.
The article begins by revisiting the past developments concerning sui generis database protection, focusing on the lessons we can draw from the debate before U.S. Congress in the late 1990s and early 2000s and the European Commission's inaugural evaluation of the EU Database Directive in 2005. This article then explores whether the present technological, business, scientific and personal needs in the United States could lend support to the proposal for a new data producer's right. The article shows that the proposed right not only fails to meet present technological needs, but is also inconsistent with the needs of our business and scientific communities. It may even cause harm to individuals and society at large.
The article further examines the potential complications regarding the future development of a sound and holistic data governance regime. Within the area of machine-generated data, the proposal for a new data producer's right would raise more questions than answers. Outside this area, complications would also arise when the protection of the proposed data producer's right spills over into other areas of intellectual property law as well as in the areas of privacy, trade and investment. This article briefly concludes by suggesting four courses of action that would help develop a sound and holistic data governance regime.
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