The Data Producer's Right: An Instructive Obituary
in Ernest Lim and Phillip Morgan (eds), The Cambridge Handbook of Private Law and Artificial Intelligence (Cambridge University Press, 2022)
26 Pages Posted: 9 Mar 2022
Date Written: March 7, 2022
Data is increasingly recognised as one of the most valuable resources of the 21st century. Its value derives from its use in machine learning algorithms, a form of artificial intelligence that finds useful patterns within data and learns from experience. This ever-increasing value has led to data being characterised as an asset. Property rights are a tried and tested legal response when it comes to regulating valuable assets. Do we therefore need a new intellectual property right for data? This chapter argues that we do not. It charts the rapid rise and recent demise of the EU data producer’s right (DPR). The DPR was proposed in 2017, to incentivise the creation, dissemination, and commercial utilisation of machine-generated data. Today it leaves a fading policy footprint in the EU, having succumbed to the compelling arguments ranged against it. However, a right of this nature continues to be debated in international policy discussions. After introducing data as a valuable resource (Section 2), the first contribution of this chapter is to analyse why the proposed DPR was unsuccessful, as a cautionary tale for others contemplating a similar model (Section 3). This obituary emphasises why data remains such a challenging res for intellectually property (IP) law. Its second contribution is to suggest that the EU is developing an alternative framework to private property, as a resource management model for data (Section 4). While the emerging approach prioritises data access rights, this emphasis does not go far enough. There are valuable lessons to be learned from constructed commons models, as an alternative regulatory approach to private property.
Keywords: data, intellectual property, machine-generated
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