Data sharing can be challenging to organise from a legal perspective. There is no legislation that solves all important legal issues, and for that reason, anyone who wants to share data has to draft up their own contract. Especially for SMEs, who may not have access to specialised expertise or to sufficient know-how, that can be a complicated job.
In such an agreement, the data to be shared has to be defined, along with the practical modalities (download possibilities, API access, and so forth). Other key topics to be settled include the definition of usage rights, guarantees on quality and availability of the data, liability of the parties, and the consequences of termination of the contract. The Support Centre has published specific guidance to facilitate this process.
But sometimes, more specialised help is useful. Orgalim, the association representing Europe’s technology industry, has published a legal guide (including model contractual clauses) for industrial data sharing in April 2021, targeted specifically towards its members. The guide aims to facilitate B2B data sharing between technology companies by reducing the complexity and length of contract negotiations. In that way, Orgalim hopes to contribute to the European ambition of creating a European industrial data space, while protecting the value of the data.
Scope and main resources
The legal guide consists both of practical guidelines and of model contract clauses. The guidelines aim to highlight specific points of interests that users of the guide should evaluate before relying on the clauses. This includes the kind of data to be shared, and notably whether it is in any way sensitive or confidential. As a point of particular attention, the clauses were drafted to facilitate the sharing of industrial data that doesn’t fall within the scope of European data protection law (such as the GDPR), and therefore isn’t privacy sensitive. In cases where the data can be linked to individual persons (such as users or employees), more specific contractual clauses would often be needed.
The guidelines also examine the topic of competition law. When properly done, data sharing can foster both competition and innovation, thus contributing to economic growth and social progress. However, when contracts are drafted or used unfairly or in a discriminatory manner, competition law challenges can arise. This is e.g. the case when a dominant party with significant market power (i.e. a party that holds data that cannot be found elsewhere) abuses its monopoly position by charging unreasonable rates, or by prohibiting the use of data in entirely new services.
Taking these priorities to heart, the guide contains open ended model clauses that should be carefully evaluated and tailored towards specific use cases. Topics covered by the model clauses include the definition and permissible use of data, data access rights and modalities, and other data-related conditions such as liability, intellectual property, and subcontractors. In each instance, a concrete sample text is provided.
General outlook and intended use
The Orgalim model clauses aim to facilitate the development of good and balanced data sharing agreements, favouring neither the data holder nor the data user, and without a specific bias towards technology companies. Despite this emphasis on balance, they are however not intended or presented as a panacea or as a ‘one-size-fits-all’ solution. The guide recognises that evaluation and modification will likely be needed. Moreover, it stresses a few points of uncertainty, including the challenge of defining appropriate usage constraints, the difficulty of assessing compliance with competition law, and the potential impact of privacy legislation. On these points, the guide provides good practices and points of attention, but also emphasises the importance of seeking additional legal guidance where needed.
Globally, the legal guide is an interesting example of how the knowledge and resource gap in relation to data sharing practices and solutions can be reduced through the creation and dissemination of practical guidance and inputs.