Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 3

Edited by Hanns Ullrich, Peter Drahos and Gustavo Ghidini

The fields of intellectual property have broadened and deepened in so many ways that commentators struggle to keep up with the ceaseless rush of developments and hot topics. Kritika: Essays on Intellectual Property is a series that is designed to help authors escape this rush. It creates a forum for authors who wish to more deeply question, investigate and reflect upon the evolving themes and principles of the discipline.
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Chapter 3: Against ‘data property’

P. Bernt Hugenholtz


With the incessant growth of the ‘data-driven economy’ have come calls for the introduction of a novel property right in data, particularly in response to the demands of the automotive industry regarding machine-generated data. As it is still unclear who owns these data, the European Commission has advanced the idea of creating at EU level a ‘data producer’s right’ to establish data ownership rules. Although the scope of this novel data right and its subject matter are still quite obscure, this new right would most likely bring the protection of industrial data in the EU to a much higher level than the existing – and already controversial – database right. This chapter wonders whether there is an actual need for creating a property right in industrial data. It therefore enquires into existing intellectual property regimes, asks to what extent these may cover data, and, conversely, speculates how a property right in data might affect these regimes. In addition, the introduction of ownership in data is critically examined as to its likely impact on fundamental rights, in particular on freedom of information and communication. The chapter then concludes against introducing a right of property in data.

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