Posted on Categories creative industry

Legal aspects of the video game industry 2.0

Interest in the game development industry is not diminishing. The upward trend has been consistent for several years, and 2021 is sure to bring a further increase. Forecasts indicate that in 2023 the value of the game market will exceed USD 200 billion.

The Warsaw Stock Exchange has strengthened its position as the world leader in the number of listed companies from the game development industry, even ahead of the stock exchanges in Japan and South Korea. The game market is becoming an increasingly promising area for investors, which can be seen in both the number and value of transactions. The segments of mobile games, distribution under a subscription model, and cloud gaming are gaining. At the same time, with so many titles available on the market, game marketing becomes more difficult and skilful community-building around a specific title becomes vital.

Recognising the importance of the game industry, last year we published the report “Law for game development,” which deals with specific legal issues in the production and publication of games. However, new legal challenges are emerging that must be faced by all stakeholders in the broader game industry. Therefore, we are starting another series of publications in which we will touch upon, among other topics, intellectual property law, labour law, personal data, and less-obvious aspects of criminal or regulatory law. We will also devote a lot of space to commercial issues that can be useful for game developers and investors alike.

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Posted on Categories data economy

The data economy and trade secrets

In previous articles in our series we discussed whether data can be subject to property rights or can be protected within known categories of intangibles. Today we will consider if and when data can be protected as a trade secret.

First we should clarify what a trade secret is and what protection this classification provides.

Trade secrets: When is protection provided?

Under Polish law, issues relating to the protection of trade secrets are mainly regulated by the Unfair Competition Act of 16 April 1993. At the European level, the Trade Secrets Directive (2016/943) has harmonised the protection of trade secrets to some extent.

The subject of the discussion below will be “trade secrets” (tajemnica przedsiębiorstwa), and not “business confidentiality” (tajemnica przedsiębiorcy) as referred to in Art. 5(2) of the Act on Access to Public Information of 6 September 2001. Judgments issued under that act indicate that in certain situations “business confidentiality” may be understood more broadly than “trade secrets” within the meaning of the Unfair Competition Act, and also includes information which has no economic value as such but the disclosure of which could have a significant impact on the undertaking’s economic situation and competitiveness (Supreme Administrative Court judgments of 17 January 2020, case no. I OSK 3514/18, and 5 July 2013, case no. I OSK 511/13).

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Posted on Categories data economy

Data as collateral?

To complement our previous considerations about the civil-law status of data, we should analyse the possibility of using data to create security interests in business transactions. The increasing economic value of data inspires a search for effective ways to collateralise these assets.

To better illustrate this point, let us use a visual example. Imagine a server owned by company X. Various data are stored on the server, including data collected by X for the purpose of training an advanced algorithm used for medical diagnostics. The market value of the data stored on the server exceeds many times over the value of the server itself.

X provided its creditor, company Y, with security in the form of a registered pledge on the movables of X. X did not fulfil its obligations towards Y, and therefore Y enforced its security and took ownership of the server storing the data. The value of the server alone is insufficient to satisfy all of Y’s claims against X, while the value of the data stored on the server exceeds X’s debt to Y. What is the effect of Y’s taking ownership of the server?

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Posted on Categories data economy

Inheritance of data

A natural extension of the consideration of the legal status of data is the question of whether data can be inherited. This is no longer just a theoretical issue. Data are increasingly valuable, making it vital to answer the question of whether data constitute an asset of the decedent’s estate that can be taken over by the heirs.

According to the Polish Civil Code, the decedent’s property rights and obligations are the subject of succession. But the estate does not include the decedent’s rights and obligations closely linked to his person and rights which, upon death, are transferred to designated persons irrespective of whether they are heirs.

Is it possible to inherit data based on such a definition of inheritance?

First of all, to answer this question, it is necessary to recall the division into different categories of data which, like the issue of classifying certain types of data as property rights, has already been analysed in our data economy series. Indeed, depending on which category of data we are dealing with, the assessment of whether a right or obligation should be included in the estate changes.

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Posted on Categories data economy, privacy/personal data protection

What is the right to personal data?

When seeking inspiration for the future legal status of data, it is worth taking a closer look at how the right to personal data has been shaped. In particular, we could consider whether it is a property right and whether the current legal framework for the right to personal data corresponds to reality and meets our needs.

The attempt to define an absolute right to personal data is mainly driven by Art. 1(2) of the EU’s General Data Protection Regulation, which states that one of the objectives of the regulation is to protect the “right to the protection of personal data.” The right to protection of personal data is also enshrined in the Charter of Fundamental Rights of the European Union and the Treaty on the Functioning of the European Union.

The source of this right is found in European legislation. For this reason, an attempt to determine the substance of the right to data protection is difficult, as we cannot simply and directly refer to structures known from the different legal systems of the member states.

The essence of the right to data protection seems to be indicated in recital 7 of the GDPR preamble, which states, “Natural persons should have control of their own personal data.” Thus, the right to protection of personal data is primarily intended to give data subjects control over their data. The specific content of this right is defined by the protective instruments provided for in the GDPR. Among other things, these instruments consist of a guaranteed right to information about processed data, the right of control, but also the right to object to data processing. Many of these rights are similar to the bundle of rights also found in classical property law structures. However, important differences also exist.

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Posted on Categories data economy

Data as crypto-assets

At first glance, it may not seem obvious to treat data as crypto-assets. But a closer look shows that the current and planned regulations for this new asset class could serve as a key legal framework for the future data economy.

The data economy and blockchain have a lot in common. Blockchain and data tokenisation are also a theme running through our data economy publications. Blockchain has revived the discussion of data tokenisation, i.e. turning data into an identifiable and tradable digital asset.

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