Data Access Rules, Copyright and Protection of Technological Protection Measures in the EU. A Wave of Propertisation of Information

Abstract

In the era of digitisation, datafication and computational uses of works, the scope of EU copyright is expanding and new EU legislative initiatives on data regulation, while aiming in principle at granting access to data, increasingly recognise and reinforce control over data through Technological Protection Measures (TPMs). A sort of “wave” pushing the field towards data propertisation is evident. After the introduction of the Text and Data Mining (TDM) regime by the Copyright in the Digital Single Market Directive (CDSM Directive), the incoming regime of Internet of Things (IoT) data access laid down in the EU Data Act Proposal of February 2022 (DA Proposal) – currently in its final stage of adoption – arguably constitutes the second-most significant example of such an emerging trend. This article identifies the EU TDM regime and the EU IoT data access regime as case studies and analyses the ways in which the shift toward propertisation of information is already taking place, both contrary to certain well-established principles of European and international copyright law and without balanced consideration of all the interests involved.

Keywords: Digitization, Datafication, Computational Uses of Works, EU Copyright Law, Technological Protection Measures (TPMs), Text and Data Mining (TDM), CDSM Directive, Idea/Expression Dichotomy, Copyright Exceptions, Data Act, IoT Data, Data Access Rules, Factual Control, Proportionality Principle