Immaterialgüter- und Wettbewerbsrecht

Data Property Rights: Historical Transformations, Doctrinal Analysis and Institutional Construction

Since the 1970s, protection of the economic value of data has gone through different stages. In recent years, two contrasting views emerged in Europe – data producer rights and data access rights. In the light of recent developments, a property rights framework that simultaneously promotes data sharing and data protection may still be necessary.

Last Update: 30.09.22

Data are nothing more than symbols that are faithfully quantified and recorded about the objective world, and need not be over-mystified or over-emphasized as valuable. With the development of information technology, the value of data has been explored many times, triggering competition among market players around data, which in turn induces a dualistic market failure in the data market: excessive data concentration and frequent data theft exist simultaneously. This has led to extensive discussion of data property rights.

Although previous data exclusivity rights have not achieved their institutional goals, this does not mean that they are insignificant either. In particular, it is important to note that the failure of the Database Directive does not mean that there should be a complete rejection of data property rights. The Database Directive has a historical background from the early days of the information age. Its overly crude institutional design may have been responsible for the impeding effect on data flows. After all, the market failure of insufficient data protection was commonly recognized in the early research. There are at least three other positive values of data property rights. Firstly, data property rights alleviate the Arrow information paradox to a certain extent and have the effect of facilitating data transactions. Second, data property rights do not imply absolute exclusivity. The concept of data property rights is extremely common in China, but in the English context, it can be misleading. Data property rights are similar in concept to intellectual property rights. The protection granted to the right holder is moderate and based on the concept of balance of interests. Through the introduction of fair use and compulsory licensing, data property rights have the dual effect of protecting the original investment in data production and collection and promoting productive innovation by data reusers. Finally, it is true that machine generated data does not require the incentive of property rights, but processed data and data products do. Data property rights can achieve the effect of enriching data supply and increasing data accessibility.

Both the EU Data Governance Act and Data Act are inspirational worldwide. It proposes an option to focus on data access rights in response to data monopoly market failures. The problem is that there is no such right as a non-exclusive right that originates from a property object. While data access rights are similar in appearance to IP compulsory licenses, IP compulsory licenses are under the premise of a valid IP right. Therefore, it seems inappropriate to leave aside data property right and focus only on data access rights. Especially in China, where there is no legislation comparable to the Database Directive, data property rights seem to be indispensable. Furthermore, a dual rights structure of data property rights and data producer rights may be the preferred choice for future data legislation of China.


Doctoral Student

Hang Sima

Doctoral Supervisor

Prof. Dr. Wu Handong

Main Areas of Research

II.3 Vernetzte Datenwirtschaft