newtech.law - legal aspects of new technologies

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.

The contemporary debate about data, including discussions of the legal status of data, are hard to understand without defining the broader context. One element of this context is the demands of the movement referred to collectively as “MyData.”

“A European strategy for data,” published by the European Commission in February 2020, alludes to the MyData movement in the context of the challenge presented by inadequate technological support for data subjects in managing their own personal data. On one hand the Commission perceives the potential inherent in personal data, in particular the potential for the data subjects themselves. Appropriately managed personal data can improve the quality of services received by data subjects (e.g. in the area of healthcare) and increase their control over their data. On the other hand, the Commission found that there is a lack of appropriate tools for managing data, and thus the inherent potential of the data is not being exploited to the fullest.

Is copyright a path to take to protect data? Can data be regarded as a result of creativity and, consequently, a protected work? Does the protection of a data filing system also include the data collected in it?

Non-personal data, in
particular data collected or generated by machines, has great economic and
scientific value. Increasingly, it is a key business asset, providing the basis
for launching new goods and services. It helps improve methods of detecting and
treating diseases, determine where to set up a wind farm or where to cut down
trees so they do not interfere with power lines, and helps ease traffic congestion
in cities.

Do entities collecting
such data or creating algorithms that harvest data, e.g. from the internet,
have rights to the data? Can such data be freely traded, e.g. sold or licensed?

This issue raises many unanswered questions. This article will address whether data is protected by copyright and, as a result, whether the data “owner” can use the instruments provided by the Polish Copyright Act to protect it against infringement by third parties.

The conceptual framework of the data economy also requires an understanding of the division of data into different layers. This may have great legal significance.

From a legal perspective, one of the most important issues of the data economy is undoubtedly the civil-law status of data (as we discussed in another article). However, it crucial to distinguish between different data layers. It turns out that when talking about “data,” we may be referring in practice to different dimensions of data.

A core issue for the data economy is how to define the legal status of data. Can data be the subject of ownership? If not, what rights can be exercised with respect to data? Future models for management of data will depend on the answers to these questions.

We are launching a series of articles on the data economy. We use this term to refer collectively to new models of the economy in which the principal role is played by data. Data are becoming an asset in their own right which is more and more often the subject of commercial exchange. This doesn’t mean only personal data. It also, or even primarily, means non-personal data of all sorts, including those generated or gathered by machines, whose value we are only beginning to discover.

We were spurred to develop a series of texts on this topic by the more and more frequently encountered question “Who owns data?” We hear this from clients, tech firms, and startups. Under the surface of this seemingly trivial question lurks the essence of the legal challenges connected with the data economy. It turns out that the legal status of data is not always obvious and it cannot easily be determined who owns data or what is the substance of rights to data.

We would like to expose some sensitive areas where the law does not yield the desired answers to fundamental questions about the rules of the data economy. Along the way, we will attempt to systematise the existing regulations, to determine to what extent they could apply to data.