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Data Ownership—A Property Rights Approach from a European Perspective

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Data Ownership—A Property Rights Approach from a European Perspective Journal of Civil Law Studies Volume 11 Number 2 Article 5 12-31-2018 Data Ownership—A Property Rights Approach from a European Perspective Andreas Boerding Nicolai Culik Christian Doepke Thomas Hoeren Tim Juelicher See next page for additional authors Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls Part of the Civil Law Commons Repository Citation Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, and Max V. Schoenfeld, Data Ownership—A Property Rights Approach from a European Perspective, 11 J. Civ. L. Stud. (2018) Available at: https://digitalcommons.law.lsu.edu/jcls/vol11/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Data Ownership—A Property Rights Approach from a European Perspective Authors Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, and Max V. Schoenfeld This article is available in Journal of Civil Law Studies: https://digitalcommons.law.lsu.edu/jcls/vol11/iss2/5 DATA OWNERSHIP—A PROPERTY RIGHTS APPROACH FROM A EUROPEAN PERSPECTIVE Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, Max v. Schoenfeld∗ I. Why Data Ownership Matters ................................................. 325 II. European Framework ............................................................. 326 A. European Primary Law ...................................................... 326 1. Charter of Fundamental Rights of the European Union and European Convention on Human Rights ................. 327 2. Digital Single Market ...................................................... 328 3. Fundamental Freedoms ................................................... 328 B. European Secondary Law .................................................. 330 1. Steps Toward “Data Sovereignty” in the GDPR ............ 331 2. Data as a Good in the Directive on e-Privacy ................. 332 3. Parallels Between Safekeeping and Hosting Contracts in the Directive on E-Commerce ................... 333 C. Interim Findings ................................................................. 333 III. National Laws in Europe ...................................................... 334 A. Data as Tangible Property .................................................. 334 1. Historical Influences and Preliminary Considerations.... 334 2. Identifying European Commonalities ............................. 336 3. Interim Findings .............................................................. 338 B. Ownership Rights in Europe .............................................. 338 1. Transparency: Publicity and Specificity ......................... 339 2. Acquisition of Ownership ............................................... 340 3. Criteria for Allocation in Case of Original Acquisition of Ownership .............................................. 340 4. Transfer of Ownership .................................................... 341 5. Interim Findings .............................................................. 346 ∗ Andreas Boerding, Associate at Denton’s Berlin office; Nicolai Culik, Trainee Lawyer, PhD in law at University of Münster; Christian Doepke, Associate at Beiten Burkhardt’s Düsseldorf Office, LL.M. at Universities of Hanover and Oslo; Thomas Hoeren, Professor of Civil Law, PhD in IT Law at University of Münster; Tim Juelicher, Trainee Lawyer, B.A. in political science, and PhD in law at University of Münster; Charlotte Roettgen, Research Assistant at University of Münster (Germany); Max v. Schoenfeld, Trainee Lawyer, PhD in law at University of Münster. 324 JOURNAL OF CIVIL LAW STUDIES [Vol. 11 IV. Data-Specific Issues.............................................................. 346 A. Data Theft .......................................................................... 346 B. Bankruptcy ......................................................................... 348 C. Data and (Common Law) Lien .......................................... 349 V. Dimensions of Data Ownership ............................................. 351 A. European Scope ................................................................. 352 B. Potential Criteria for Assigning Data Ownership Rights ... 354 1. Open Data Concepts ....................................................... 354 2. Data and Data Carriers .................................................... 355 3. Originator of Data ........................................................... 356 4. Economic Rationale ........................................................ 357 5. Interim Findings .............................................................. 359 C. Rights of Use and Defensive Rights .................................. 359 1. Access Rights .................................................................. 360 2. Use and Exploitation ....................................................... 361 3. Defensive Rights ............................................................. 362 D. Conflicting Rights .............................................................. 366 VI. Final Conclusions ................................................................. 369 ABSTRACT Data has become one of the most important resources in post- modern information society. However, European civil law does not reflect this development adequately. In fact, so far, European civil law seems to struggle with handling data as a legal entity. Against this background, the article provides a transnational overview and a comprehensive analysis of the legal situation in Europe. It dis- cusses why data ownership is widely perceived as a problem on this side of the Atlantic and how this perception can be overcome by a fundamental property law approach. Taking into account economic realities, we argue that European property law provides a sufficient framework for establishing a theoretical concept of data ownership. Therefore, we draft the dimensions of a data ownership concept by proposing potential criteria for assigning ownership and analyzing both positive access and negative restriction rights. 2018] DATA OWNERSHIP & PROPERTY RIGHTS 325 Keywords: data ownership, property law, European Community law, protection of personal data, fundamental freedoms, data sover- eignty, property asset, tangible and non-tangible property, transfer of ownership, assigning data ownership rights, rights of use and de- fensive rights, restriction rights against others I. WHY DATA OWNERSHIP MATTERS Data is a duplicable virtual entity, i.e., neither tangible nor ex- clusive by nature. Looking into nowadays digital economy, though, we quickly realize that data is de facto regarded as if it were a “thing” that can be owned like goods and chattels. According to the European Commission, “[d]ata has become an essential resource for economic growth, job creation, and societal progress.”1 In the big data era it is indeed uncontested that data is an asset, if not the asset of the 21st century.2 However, legal analysis shows that private law in Europe does not reflect this reality so far. Scholars and practition- ers claim that private laws consistently struggle with handling data as a legal entity.3 Against this background and taking into account all major Euro- pean legal systems, we argue that European property law already provides sufficient common principles to establish a comprehensive concept of data ownership. 1. European Commission, Building a European Data Economy, at 2, COM (2017) 9 final (Jan. 10, 2017) [hereinafter Building a European Data Economy]. 2. E.g., European Consumer Commission, Meglena Kuneva, Personal Data is the New Oil of the Internet and the New Currency of the Digital World, Keynote Speech at the Roundtable on Online Data Collection, Targeting and Profiling, SPEECH/09/156 (Mar. 31, 2009). 3. Wolfgang Kerber, A New (Intellectual) Property Right for Non-Personal Data?, GEWERBLICHER RECHTSSCHUTZ UND RECHT, INTERNATIONALER TEIL [GRUR INT.] 989, 990 (2016); Robert Hieke, Big Data, 5 ZEITSCHRIFT ZUM INNOVATIONS- UND TECHNIKRECHT [INTER] 10, 11 (2017); Artur-Axel Wandtke, Ökonomischer Wert von Daten, MULTIMEDIA UND RECHT [MMR] 6, 6 (2017); Karl-Heinz Fezer, Theorie des immaterialgüterrechtlichen Eigentums an verhaltensgenerierten Personendaten der Nutzer als Datenproduzenten, MMR 3, 5 (2017) (claiming the need for a sui generis right). 326 JOURNAL OF CIVIL LAW STUDIES [Vol. 11 For this purpose, we will give a concise summary of the relevant supranational framework before diving into an analysis of national laws. By applying a property law approach, we will then take a close look at whether data can be seen as a tangible good and how owner- ship rights are acquired and transferred. Subsequently, we will dis- cuss specific problems regarding data ownership and marketability, particularly data theft, bankruptcy, and lien. Thereafter, we will draft the dimensions of a data ownership concept by proposing potential criteria for assigning ownership and analyzing both positive access and negative restriction rights. Fi- nally, the data ownership concept will be brought into line with con- flicting rights such as personal rights, privacy, and freedom of infor- mation. II. EUROPEAN FRAMEWORK On a European level, there is no concerted approach to the ques- tion on data
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