Data as a Tradeable Commodity
Herbert Zech · Intersentia eBooks · 2017
Transactions concerning data challenge both contract law and property law. The Digital Single Market Strategy addresses data protection and copyright but not contract law. The proposed Directive concerning contracts for the supply of digital content fills this gap but only applies to business to consumer contracts and is silent about the qualification of data contracts. This article seeks to clarify the factual and legal situation underlying contracts concerning data. First, the concept of data as a commodity and the interplay between contracts, factual exclusivity and legal exclusivity is discussed. Second, the legal framework for contracts concerning different kinds of data is shown. Data as a commodity and their use may be defined mainly by contractual provisions. This is the case when contracts concern secret data. In business-to-business relations this solution is identical to contracts concerning trade secrets. Similarly, data may be traded using technical protection measures leading to a factual exclusivity of their use. Data protection, originally being an aspect of personality protection, may be used as an object of legal transactions too - but only to a certain extent. Within existing intellectual property rights, the right for the maker of a database is licensable and transferrable but does not protect the single datum. This leads to the question whether a new kind of data property right should be created. Therefore, third, the possible outline and arguments in favour of and against the introduction of a data producer right are presented. DATA AS THE OBJECT OF A CONTRACT When data are discussed as a legal object, a clear definition is not always used. The term digital content as defined by European law may be used as an alternative. As a prerequisite for the analysis of contracts and property rights related to data, the terminology has to be clarified. DEFINING DATA Data as Machine-Readable Encoded Information In its simplest meaning, the term data can be defined as machine-readable encoded information. For contracts and property rights, however, data have to be defined as a legal object or as an economic good.