Resisting IP Overexpansion: The Case of Trade Secret Protection of Non-Personal Data

Abstract

Intellectual property overprotection has become a long story in law. This article analyses how the ambit of intellectual property rights (IPRs) affects access to non-personal data. In so doing, it homes in on the case of a quasi-IPR, ie trade secrecy, and shows how its interplay with non-personal data involves some overprotection risks. More specifically, trade secrecy forms a perpetual barrier to data access resulting in the lack of transparency and public oversight of corporate activities and the limitation of data reuses to the detriment of weak actors. Competition law remedies, amounting to ex post interventions, may nevertheless offer little guidance as to how to redress the imbalances. The paper takes one further step to survey regulatory and interpretive solutions that can help to mitigate overprotection risks and make room for establishing data access rules. Specifically, it explores two meta-regulatory principles deriving from property theory that can be employed and rejigged to some extent for the purpose: the numerus clausus of IPRs and the social function of intellectual property. Conceptualised in a novel fashion, they can steer legislatures and courts towards restrictive understandings of IP forms and contain propertisation of new intangibles, such as large aggregations of non-personal data. The proposed theories are then checked against the EU trade secret regime to investigate the practical implications for such legislation.

Keywords: non-personal data, trade secrets, data governance, data access, numerus clausus of IPRs, social function of IP