A Quest for Fair Balance: Testing the Right of Access against IP Rights and Trade Secrets

Abstract

The widespread implementation of big data analytics for making decisions about individuals has fueled concerns regarding the transparency and the fairness of these methods. GDPR protects the data subjects against the pervasive implications of automated decision making on the protection of personal data. The backbone of that protection is the right of access under the Art.15, which enables data subjects to monitor the processing, to hold the controllers accountable and to exercise their rights. In particular, the Art.15(1)h grants data subjects the right to request meaningful information about the logic involved in an automated decision making process. However, the concept of “meaningful information” is not clear cut and its scope may be limited by the controllers if such information constitutes a subject matter protected under IP rights and trade secrets. The intersection of the scope of the Art.15(1)h, and the subject matter of IP rights and trade secrets brings about a conflict between the interests of the data subjects and the interests of the right holders over the disclosure of such information.
This thesis tackles the conflict arising at the intersection of the right of access and IP rights and trade secrets and discusses how a fair balance between these conflicting rights may be struck. It starts with presenting the purpose and (the debates on) the scope of the Art.15(1)h of the GDPR, then analyzes its overlap with the protection of IP rights and trade secrets. After establishing the conflict, it looks for a possible solution under the principle of fair balance.

Keywords: automated decisions, big data, GDPR, right to explanation, right of access, intellectual property, copyright, database right, trade secrets, fundamental rights and freedoms