The Data Act: Start of a New Era for Data Ownership?

56 Pages Posted: 27 Sep 2022

See all articles by Simon Geiregat

Simon Geiregat

Ghent University; FWO; Max Planck Institute for Innovation and Competition; Universiteit Leiden, eLaw

Date Written: September 8, 2022

Abstract

Building on the finding that data should not be subject to ownership, the Data Act Proposal intends to create two new data control rights. Chapter II establishes a right to access data created by IoT products, enforceable upon data holders (Articles 4–7). The delineation of this right is open for improvement: its scope is unclear and exclusions are too wide. Whereas conflicts with data protection are explicitly addressed, conflicts with intellectual property (IP) should be resolved through a balancing test. Pursuant to the Proposal, users will also be entitled to decide on the further use of their data. To the extent that this implies the establishment of exclusive data rights, amendments are urged for.

Chapter VI features a portability right to facilitate switching between providers of cloud and edge computing services (Articles 23–24). That right should be understood as statute-based and not merely as a contractual right. There is a mismatch between its scope and its objectives, and excluding online content services is unjustified. Resolving ambiguity about its object, the right should be applicable to imported, (co-)created and (co-)generated data, applications and digital assets. Digital assets should be redefined. For consumers, the Proposal goes further than existing portability rights, which is applauded. Although imminent, conflicts between portability and IP are not settled in the Proposal. However, it is argued that providers will rarely be liable and should not be allowed to invoke IP to prevent portability.

Assessing both rights ‘as objects of property,’ it is argued that they constitute neither ownership rights, nor rights in rem, nor IP. They are non-exclusive rights in personam that are licensable, but not waivable nor transferable inter vivos. National law will determine whether they can be given as security or subjected to limited property rights. They should be considered self-standing assets that can be part of an inheritance or a bankrupt’s estate. Modifications to the Data Act are suggested, and it is concluded that the proposed rights resemble what data ownership would look like, and that fragmentation will subsist.

Keywords: EU, Law, Regulation, Data Act, Internet of Things, Cloud, Access, Portability, Data producer, Digital property

JEL Classification: K00, K11, K12, K20, K21, K29, K49

Suggested Citation

Geiregat, Simon, The Data Act: Start of a New Era for Data Ownership? (September 8, 2022). Available at SSRN: https://ssrn.com/abstract=4214704 or http://dx.doi.org/10.2139/ssrn.4214704

Simon Geiregat (Contact Author)

Ghent University ( email )

Universiteitstraat 4
Gent, 9000
Belgium

HOME PAGE: http://www.ugent.be/re

FWO ( email )

Egmontstraat 5
Brussels, 1000
Belgium

HOME PAGE: http://www.fwo.be

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

HOME PAGE: http://https://www.ip.mpg.de/

Universiteit Leiden, eLaw ( email )

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