Ownership of User-Held Data: Why Property Law Is the Right Approach

Harvard Journal of Law and Technology Digest [2021]

30 Pages Posted: 7 Dec 2020 Last revised: 5 Oct 2021

See all articles by Paulius Jurcys

Paulius Jurcys

Vilnius University; Prifina

Christopher Donewald

affiliation not provided to SSRN

Mark Fenwick

Kyushu University - Graduate School of Law

Markus Lampinen

affiliation not provided to SSRN

Andrius Smaliukas

affiliation not provided to SSRN

Date Written: October 1, 2020

Abstract

The main thesis of this article is that individuals should own their user-held data. Rapidly developing data processing technologies empowers individuals to collect their data from different sources and retain it in personal data clouds. Such user-held data represents the most accurate, up-to-date, and rich information about the individual.

We show that user-held data meets all the requirements of an ‘asset’ in property laws regardless of the fact that data could be deemed as being intangible. More specifically, we show that such user-held data is specifically defined, has independent economic value to the individual, and can be freely alienated. We focus on property law aspects of data ownership and prove that user-held data should be treated as an ‘asset’.

We submit that the economic benefits property law type of entitlements over user-held data are superior over the set of data rights that are afforded by public law instruments (such as the GDPR or the CCPA) to individuals vis-a-vis third-party service providers who hold and benefit enormously from the information about individuals.

Recognition of ownership rights is a necessary precondition for building a new data ecosystem where data is separate from applications; and where applications developed by third parties run on top of user held data. We show how user-held data is changing the understanding of the meaning of data portability and opens the opportunities for more fair, ethical, and transparent use of data and opens a level playing field for businesses to compete in providing bespoke services to individual consumers.

Keywords: Data, User-Held Data, Privacy, CCPA, GDPR, Ownership, Roman Law, Law and Economics data, personal data, property, ownership, privacy, EU law, law, policy, big data,

JEL Classification: A10, A13, H4, K1, K10, K11, K12, K19, K3, K30

Suggested Citation

Jurcys, Paulius and Donewald, Christopher and Fenwick, Mark and Lampinen, Markus and Smaliukas, Andrius, Ownership of User-Held Data: Why Property Law Is the Right Approach (October 1, 2020). Harvard Journal of Law and Technology Digest [2021], Available at SSRN: https://ssrn.com/abstract=3711017 or http://dx.doi.org/10.2139/ssrn.3711017

Paulius Jurcys (Contact Author)

Vilnius University ( email )

Sauletekio ave. 11, Vilnius
Vilnius
Lithuania

Prifina ( email )

1 Market Street
San Francisco, CA California 94105
United States

Christopher Donewald

affiliation not provided to SSRN

Mark Fenwick

Kyushu University - Graduate School of Law ( email )

744 Motooka, Nishi-ku,
Fukuoka, Fukuoka 819-0395
Japan

Markus Lampinen

affiliation not provided to SSRN

Andrius Smaliukas

affiliation not provided to SSRN

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