CIPIL Seminar: 'Data property'

Speaker

Bernt Hugenholtz, Professor of Copyright Law, and Co-Director of the Institute for Information Law of the University of Amsterdam.

Abstract

With the growth of the ‘data-driven economy, and the rise of ‘Big Data’ have come calls for the introduction of a novel property right in data. In its Communication on ‘Building a European data economy’ (2017) the European Commission advances the idea of creating a ‘data producer’s right’  that would protect non-personal industrial data against the world. Although the contours of this novel right are still sketchy, as are its economic underpinnings, the right would clearly go far beyond any protection currently offered by EU copyright law and sui generis database protection.

In this seminar Prof. Hugenholtz will argue that introducing such a right would be a very bad idea – for many reasons. It would ride roughshod over the existing system of intellectual property. It would violate one of IP law’s maxim that data per se are “free as the air for common use”, and that only creative, innovative or other meritorious investment is protected. It would corrode IP’s mechanism of incentives by creating an undergrowth of rights that automatically protects all data produced with the aid of machines. It would extensively overlap with other IP regimes, and thus create undue impediments for the exploitation of existing rights, such as copyright and database right, and endanger user freedoms guaranteed under these regimes. It would also give rise to gross legal uncertainty, since the ‘velocity’ of real-time data generation makes it difficult, or even impossible, to circumscribe its subject matter, scope of protection and ownership. More generally, a property right in machine-generated data would contravene freedom of expression and information, and pose new obstacles to freedom of competition, freedom of services and the ‘free flow of data’.

About the speaker

Bernt Hugenholtz is Professor of Copyright Law, and Co-Director of the Institute for Information Law (IViR) of the University of Amsterdam. He is also a professor at the University of Bergen (Norway), and lecturer at the Munich Intellectual Property Law Center (Munich). Prof. Hugenholtz has acted as an advisor to the World Intellectual Property Organization (WIPO), the European Commission, the European Parliament and the Netherlands government. He is co-author and editor, with Prof. Thomas Dreier (TU Karlsruhe), of Concise European Copyright Law (2nd. ed. 2016), and co-author, with Professor Paul Goldstein (Stanford University), of International Copyright Law (3rd ed. 2013). Prof. Hugenholtz is one of the founders of the Wittem Group that drafted the European Copyright Code, and a co-founder and member of the European Copyright Society.