How data protection fits with the algorithmic society via two intellectual property rights – a comparative analysis
Cristiana Sappa · Journal of Intellectual Property Law & Practice · 2019
Big Data, IoT and AI are the three interrelated elements of the algorithmic society, responsible for an unprecedented flourishing of innovation. Companies working within such an algorithmic society need to protect the information created and stored for entrepreneurial purposes. Thus, their concerns relate to data protection, in particular with regard to trade secrets and the sui generis protection of databases. This paper tries to answer two questions from a EU and US law perspective. First, it asks whether data generated and managed within the frameworks of Big Data, IoT and AI meet the essential requirements to enjoy trade secret protection and the database right, if any. The answer seems to be in the affirmative in most cases. Second, it studies whether trade secrets and the sui generis right are appropriate in a sharing-based paradigm, such as that of Big Data, IoT and AI. The focus on this upstream protection helps to understand the bottlenecks created at the downstream level, which challenge innovation and transparency, as well as consumer protection. In other words, when both exclusive rights (the sui generis protection for databases) and quasi-intellectual property rights (trade secrets) are present, innovation and the circulation of information are not necessarily promoted, and the presence of this double protection may be beneficial to big businesses only. On the other hand, the presence of mere trade secrets does not seem to utterly exclude an encouragement to innovation and the circulation of information and it is therefore more suitable to SMEs and to safeguard the public interest.