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IP rights in data? AIPPI says nay for mere data, yea for database

Andrea Andolina, a Lawyer from our Litigation & Dispute Resolution group in Milan, recounts his experience of participating in a working group.

24 November 2020

AIPPI INT. is a very well-know organisation in the field of intellectual property, grouping professionals and experts worldwide and promoting the awareness and the development of the intellectual property, at global and local level.

At the beginning of each year AIPPI INT. proposes a Study Question in the main fields of intellectual property to each AIPPI's national groups. The topic of the Study Question is debated and elaborated by the national groups which are requested to advise on the current legal framework and propose any possible improvements to be implemented in terms of international harmonisation (if any). The outcomes of the national reports are aggregated in a summary which became the base for a restricted committee (formed by a representative for each national groups and of AIPPI executive committee) to prepare a draft of resolution to be then discussed, amended and approved at the annual congress of AIPPI INT. (this year held on 5-14 October, of course, virtually). All the documents related to the annual study question, including the guidelines on the topic, the national reports and final resolutions, are freely available on AIPPI INT.'s website.

The 2020 Study Question for copyright: rights in data?

I had the opportunity (and the honour) to attend the national working group for the study question for copyright and represent the Italian group within the restricted committee in the drafting of the draft resolution and at the annual congress when the resolution has been approved.

The 2020 Study Question for copyright related to a topic very much covered in articles and debates among IP practitioners: "IP rights in data?", with the question mark to testify the uncertainties in this pretty unknown territory.

It has been requested in particular to:

  1. analyse the current legal framework regarding mere data / unstructured data – meaning any information of any kind, not structured and not arranged in a systematic or methodical way – on one hand and database (even non original) / structured data – meaning a collection of information arranged in a systematic or methodical way and individually accessible by electronic or other means – on the other hand. The scope of this first analysis included IP regulations and any other legal instruments (e.g., unfair competition or contracts) which give to some extent or form protection to the two subject-matters;
  2. advise on the sufficiency / adequacy of the current legal framework, suggesting improvements (if any) or instead elaborating on the reason why no adjustments would be desirable. In particular, the national groups have been required to take position on the possibility to introduce a specific sui generis right to protect unstructured data and/or structured data.
The resolution

The final resolution approved last October concludes as follows:

  • (i) harmonisation at international level on the legal definition of unstructured data / mere data is desirable, whilst there is no need of a further layer of protection, such as a sui generis right;
  • (ii) the introduction of a sui generis right for structured data / database is instead recommended, on the model of the Dir. (EC) 96/9;
  • (iii) the proposed sui generis right should include a set of exception and limitation to ensure access to and use of Health Data and Public Sector Information to facilitate research, development and innovation based on such data and public accountability and comment.
Some takeaways

The final result of the resolution is certainly remarkable and offers the occasion for some policy reflections. It will be in particular intersting to see how (and if) the lawmakers will take inspiration from this position.

Personally, these are the preliminary takeaways from the experience in the working groups for the resolution:

  • there is a spread, though indefinite, perception that "something is missing" in the legal framework when it comes to consider data from a legal perspective: particularly notable is the fact, for example, that both US and Chinese groups in their national report called for the introduction of a sui generis right also for mere data and not only for structured data (as instead made by the majority of the European groups);
  • also for this (as I said: indefinite) perception of under-protection, the tendency is to look at the European experience, being seen as the system that paid the greater attention in the last years to data regulation; the GDPR certainly, but also the various legislation on Open Data and the jurisprudence on the database directive, are more and more scrutinised by non-European countries; I believe this is another confirmation of the maturity and centrality of the European data market and the key role that Europe is playing and can potentially further play in this sector: it is a sort of moral leadership that brings the other countries to emulate even a piece of legislation, the Dir. (EC) 96/9 - which was a very European experiment 25 years ago -, that the Europeans themselves see without great enthusiasm (many reports from European countries in fact suggest improvements/amendments to database regulation) and in any case also with scepticism about its capacity to resolve or at least efficiently tackle the legal issues of data;
  • in this uncertain and evolving scenario, it has been confirmed the centrality of contract as major (if not sole) legal instrument used by the stakeholders to balance the various interests and find satisfactory solutions; this is a common understanding clearly affirmed by the national groups of the majority of jurisdiction: contract is certainly the first and more effective layer of protection currently at hand for companies and player in the market of data worldwide.