Will data services remove intellectual property rights from the picture?

Hans Graux

This is the final 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 this piece, we conclude and re-iterate key attention points. 

Clearly, a shift to data-as-a-service has benefits as described in the previous articles, but data receivers should be aware of their greater dependence on the contractual terms offered by the data holder. Especially when intellectual property rights don’t apply, and/or when the subscription agreement defines usage rights and limitations without reference to any intellectual property rights, the receiver should understand that the removal of intellectual property rights from the equation also removes the balancing act that the legislator and courts have attempted to put into place.

Based on the observations above, it is clear that data-as-a-service – in the form of APIs, web services, and dynamic online market places – is increasingly the dominant paradigm for data sharing, in the same way that it has taken audio-visual media and software distribution by storm. This trend is generally beneficial, since it increases flexibility and usability of the data, both for the data provider and for the data user.

Nonetheless, there is also an increasing dependence on contractual provisions, which no longer need to satisfy the protections created in intellectual property rights legislation. Contractual freedom becomes a mixed blessing then, which admittedly allows parties to implement a legal framework that optimally satisfies their needs and expectations; but which in return also erodes some of the assurances created by intellectual property rights, in terms of exceptions for lawful use and transferability in particular.

This need not be a fundamental problem, of course; but parties relying on dynamic data services on the basis of subscription agreements should do well to take a few recommendations to heart. Firstly, it is worth verifying if and whether the terms offered have been independently created by the data provider, or whether they follow any best-practice templates that were drafted with the objective of being balanced.

Secondly, they should assess whether the terms have defined usage rights that sufficiently cover their expected usage. As explained above, exceptions for e.g. educational use, private use or criticism do not apply when intellectual property rights are inapplicable; and transferability of usage rights to a third party is also not ensured. If these are relevant, the aspiring user should verify that the terms allow such use.

Finally, the user of a subscription service should determine the stability of the agreement, in terms of their right to retain data and to continue to use it if the service becomes unavailable. One of the merits of buying a copy of a data set and the related licence is that the data remained available and usable as long as the licence was valid. In a subscription service, data may become unavailable on very short notice. If retention or historic access to data is relevant, a user should do well to verify that this is also legally permissible.

It is possible that some of these concerns are temporary. As noted above, the shift to dynamic data-as-a-service is real and increasingly supported by existing and emerging legislation. As this legislation evolves and matures, these issues will be settled in a more systematic and balanced manner. In the meantime however, a subscriber should beware.

Will data services remove intellectual property rights from the picture?
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2017, Giammarco Boscaro via Unsplash

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