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Immaterialgüter- und Wettbewerbsrecht

Data as a Digital Resource

Gintare Surblyte Data as a Digital Resource (Max Planck Institute for Innovation & Competition Research Paper, No. 16-12), 2016, 40 S.

The digital economy has been termed a data-driven economy. Many digital business models are based on the collection and the processing of various types of data. Whereas the protection of personal data falls under the EU legal framework, and first and foremost the General Data Protection Regulation, the protection of data that goes beyond personal data may seem to be not protected at all. The latter circumstance is important in light of the EU Commission’s considerations on the introduction of rights related to the protection of non-personal data. Indeed, the question of whether there is a need for the protection of such data – called “industrial data” - and the issue of access to such data have also been at the center of a recent academic debate. Yet, whereas the protection of different types of data is highly relevant when it comes to the transfer and the processing of data, for the question of “access to data” data has to be considered more broadly, i.e. as a digital resource. Since in the digital economy it is no longer individual pieces of data (personal and/or non-personal) that play a role, but rather collections of data, digital data sets (which may consist of both personal and non-personal data) have become a digital asset of companies. The value of such digital data sets derives from the analysis of data – importantly though, the analysis of real-time data. Due to this feature of data, i.e. the fact that data is constantly changing, the question that arises as regards access to data in the digital economy relates not so much to access to data as such, but rather to access to the sources of data. After all, it is only in this case that access can be provided to real-time data. In light of this, the current debate on so-called “industrial data” may appear too static and, besides, it considers only part of the data that is relevant for the companies operating in the digital economy. The question is what the legal framework for an optimal allocation of such a digital resource as data should be and whether the question of access can be solved with the currently available legal tools.

Available at SSRN