This is the third article in the series of opinion pieces that dive into data sharing as a service. Will data services remove intellectual property rights from the picture, and at what cost?
In the previous article of this series, we assessed to what extent intellectual property rights are relevant to data and concluded that data sharing as a service is possible, as that doesn't necessarily require the existence of intellectual property rights. Here, we dive into that concept.
Before looking at the impacts of any shift from traditional licensing to data-as-a-service, it is worth asking a much more basic question: is any such shift actually happening? Clearly, the examples mentioned in the introduction already showed that the answer is yes for traditional original content (music, video, software, games, etc.), but what about less IPR-oriented digital data, including most public sector data?
At least from a policy perspective, the answer for such data is clearly also affirmative. This can be witnessed e.g. through the recently revised Open Data Directive from 2019, which replaced the prior Public Sector Information (PSI) Directives. One of many innovations of the Open Data Directive is its emphasis on dynamic data access and application programme interfaces (APIs), focusing on the creation of flexible access and usage rights, rather than focusing on static one-off data transfers. In other words, the Directive focuses on dynamic data sharing.
Moreover, the use of APIs would be mandatory for so-called high-value data sets 1 , including geospatial data, earth observation and environment data, meteorological data, statistics, companies and company ownership data, and mobility data 2 . Unsurprisingly, most of these specifically named high-value data sets would likely not qualify for intellectual property rights, since they all contain exclusively objective and factual data (thus disqualifying them from copyright protection), and are all generated as a by-product of a principal activity (thus disqualifying them from database rights). Given this state of play, there is indeed an increased emphasis on providing valuable data as a service, rather than merely on licensing IPR protected data.
Other instruments show the same shift. By ways of examples, dynamic data access rights have been enforced in:
- Banking, through Directive (EU) 2015/2366 on Payment services in the internal market (PSD2), which mandates making account data accessible through APIs to third party payment service providers and account information service providers (with the consent of the account holder).
- Energy, through the Directive 2012/27/EU on Energy efficiency, which mandates the use of intelligent metering systems (e.g. smart meters) to enhance energy saving and support the development of energy networks (smart grids).
- Automotive, through the Regulation (EC) No 715/2007, which establish the rights to unrestricted and standardised access to vehicle repair and maintenance information to independent operators, in a non-discriminatory manner compared to the access granted to authorised dealers and repairers.
In all of these cases, the underlying data is in principle not protected by intellectual property rights, since it is objective and factual in nature, and generated as the by-product of a main service (respectively financial services, energy provision, and car operation for the examples above).
Thus, the answer to the central question – is the shift to services happening for data as well – is clearly yes. The emphasis in new legal and policy initiatives is universally on dynamic access to data as a service. This opens the floor for greater flexibility in defining user rights.
Stay tuned for the next article in the series: Will data services remove intellectual property rights from the picture, and at what cost?