Christiane Wendehorst, ‘Of Elephants in the Room and Paper Tigers: How to Reconcile Data Protection and the Data Economy’

ABSTRACT
On 10 January 2017, the European Commission published another package of documents within its Digital Single Market strategy. Among them is a Communication on the ‘Building of a European data economy’, accompanied by a Staff Working Document and a public consultation. Apart from some liability issues raised by the emerging Internet of Things and autonomous systems, which seem to have ended up in this package by some rather strange logic, the documents have a dual focus: in the first place, they address the ‘free flow of data’ in the EU and its restrictions by hindrances such as data localization requirements. In the second place, they discuss different possible avenues for boosting the European data economy, implicitly or explicitly starting with the assumption that the European data economy is somewhat lagging behind and has to catch up with other big players in order for Europe to meet the challenges of the global economy in the 21st century. It is in this spirit that the Commission documents suggest a series of potential steps to be taken. Apart from nonlegislative measures, such as incentivising businesses to share data, or fostering the development of technical solutions for reliable identification and exchange of data (e.g. APIs), the measures under consideration include the introduction of a new property right (data producer right), other schemes of investment protection akin to trade secrets law, compulsory access rights against remuneration (such as FRAND licences) and/or access rights for public interest or scientific purposes, and solutions in contract law including default rules for data-related contracts and unfair contract terms control in business-to-business transactions …

Wendehorst, Christiane, Of Elephants in the Room and Paper Tigers: How to Reconcile Data Protection and the Data Economy, in Lohsse, Schulze and Staudenmayer (eds), Trading Data in the Digital Economy: Legal Concepts and Tools: Münster Colloquia on EU Law and the Digital Economy III (2017) 327-356.

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