Big Data, IP, Data Ownership and Privacy: Conceptualising a conundrum

Author: Ingrid Schneider (University of Hamburg)

Abstract
Big Data is a buzzword to indicate the present and future of data aggregation and analysis, from research and data‐related business towards the internet of things. However, one central question as yet has remained unresolved: Who owns data? Can data be owned? And if so, who is the owner?

Property in data challenges traditional concepts of civil law which from Roman times have attributed property to tangible goods. Data are intangible goods which in many ways match the public good character of information and knowledge (Arrow 1962; Nelson 1959), at least with respect to non‐rivalry in use. Concerning questions of access and exclusion, issues of data ownership need to be addressed in the advent of Big Data, as they are strongly associated with power distribution.

Data as such are not regarded as property but can be protected via trade secrets, copyright, and other means. For structured databases, a sui generis database right was created by the EU Database Protection Directive (29/9/EC) which protects the “substantial investment in either the obtaining, verification or presentation of the contents” [Art. 7(1)]. Similarly, arguments for ownership and trade in data often rely on “return on investment” justifications.

This may, however, form a weak rationale for new business models in the internet and social media, in which users get services for free, but “pay” with their personal data, often without their own knowledge (“If you don’t pay for the product, you are the product”). Concerns about violation of privacy and clashes with human rights need to be addressed by shaping the legal and political governance of Big Data.

In response to the network effects of the internet‐based data economy, the subsequent power inequalities between users, providers, and intermediaries call for legal interventions. Some scholars have proposed individual ownership of data to empower prosumers (Lanier 2013). Others reject the commodification of (personal) data, and strongly call for public ownership, against private appropriation (Morozov 2014).

For conceptualising the conundrum associated with intellectual property in data(bases) and data ownership, several forms of private and collective ownership need to be discerned. For the latter, I will propose to rediscover five categories of Roman Law for nonexclusive property, namely res nullius, res communes, res publicae, res universitatis, and res divini juris (Rose 2003). Such categories could be useful to distinguish the variety of concerns, motives, and norms implicated in data ownership.

Moreover, replies to the question whether privatisation, proprietarisation, and commodification of data enables or restricts invention, innovation and diffusion of information are closely tied to the shaping and reshaping of governance models, both in the EU and on a global scale. Such issues need to be addressed in the EU’s Digital Agenda.

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