The Commission is on a roll!  Following an impressive reform of the European data protection framework and the harmonisation of the protection of trade secrets in 2016 and despite the ongoing copyright reform, the Commission is now turning to the regulation of non-personal data.  In January 2017 it released a communication on the European data-economy (backed by a staff working document) in which it describes several obstacles to a thriving data-economy in the European Union. Data often contain personal data or works protected under copyright or similar rights (such as database rights), to which specific rules apply – mostly harmonised under European law.

It could be guessed then that the use and the sharing of non-protected data should be easier.  Yet the Commission finds that this is not always the case:  machine-generated data are kept by the company that generated the data (by the use of the machines) or at most given to a subcontractor to perform the data analysis. Yet other companies, such as startups, or governments could use such data to develop new services or gain other insights. Also, users risk being locked into a data service for want of interoperability and portability of their data.

So the Commission considers various interventions to make more data more widely accessible, e.g. by harmonising the contractual framework in which data actors (user, owner of the machine generating data, manufacturer of the devices, data service provider, intermediaries,…) interact, by encouraging the development of technical solutions so the data can be reliably identified and exchanged (e.g. APIs), by making access to particular datasets mandatory where this is in the general interest or regulating the conditions under which access can be obtained (fair, reasonable, non-discriminatory or FRAND terms) or even by the creation of a data producer’s right.  Such new rules could evidently create conflicts with existing rights (e.g. protected datasets could create a competitive advantage or could be protected under database rights), which the Commission should ideally solve while reforming the various legal domains.

The Commission launched a public consultation on this very rich and complex subject and in particular businesses (of all sizes), manufacturers and users of connected devices, operators and users of online platforms, data brokers, businesses commercialising data-based products and services, public authorities, non-governmental organisations, researcher and research organisations and consumers are invited to participate (until 26 April 2017).

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