Property

'Proprietary Data, Open Data, Data Commons: Who Owns the Data? How to Best Reconcile Conflicting Interests in Exploiting the Value of Data and Protecting Against its Risks' by Luisa Kruse and Maximilian Grafenstein comments

 The European data strategy aims to make the EU a leader in a data-driven world. To this aim, the EU is creating a single market for data where 1) data can flow across sectors for the benefit of all; 2) European laws like data protection and competition law are fully respected; and 3) the rules for access and use of data are fair, practical and clear. In order to structure the corresponding initiatives of legislators and public authorities, it is important to clarify the data ownership models on which the initiatives are based: Proprietary data models, Open Data models or so-called data commons models. Based on a literature analysis, this article first provides an overview of the discussed economic and social advantages and disadvantages of proprietary and Open Data models and, against this background, clarifies the concept of the data commons. In doing so, this article understands the data commons concept to mean that everyone has an equal right in principle to exploit the value of data and control its associated risks. Based on this understanding, purely technical power of the data holder to exclude others from “her” data does not mean that she has a superior or even exclusive right to generate value from the data. By means of legal mechanisms, the competent legislator or public authorities may therefore counteract such purely de facto powers of data holders by opening their technical access control over data for other parties and define the conditions of its use. In doing so, the interests of the data holder in keeping the data for themselves must be weighed up against the interests of data users in using the data as well as the interests in controlling the related risks of all parties affected by this use. While this balancing exercise may be established, in a more or less general manner, by the European or national legislator or even by municipalities, data intermediaries will have to play a central role in ensuring that this balancing of interest is resolved in specific cases. Data intermediaries may do this not only by specifying the general data usage rules provided by the legislators and municipalities in the form of context-specific access and use conditions but above all by monitoring compliance with these conditions.