SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Wolfgang Kerber (University of Marburg)
Martina Eckardt (Andrássy University Budapest)
Abstract
With the advance of smart IoT devices (Internet of Things) the amount of valuable data will increase dramatically. For much of the thus generated non-personal data no legal rights exist. In its Data Act (DA) draft the EU Commission proposes new data access and sharing rights for the users of IoT devices. Based upon the economic property rights theory, this article analyzes how the DA would change the bundle of rights on non-personal IoT data regarding who can control, access, use, share, and monetize this data. In a first step, we apply the property rights theory (esp. the approach of Barzel) for explaining the status quo of IoT data governance: Through the technical design of their IoT devices the manufacturers can get exclusive de facto control over IoT data, i.e. they can technologically capture the data, exclude others from accessing and using this data, and draw value from this data as if they have exclusive property rights on them. In a second step, we analyze how the DA would change this de facto bundle of rights in order to unlock more IoT data for innovation, competition, and empowerment of users. Since the DA proposal is not very clear and partly contradictory, three different concepts for the design of this bundle of rights are analyzed and compared: A data holder-centric IP-like concept, a user-centric concept, and the concept of co-generated data. For achieving the objectives of the DA, especially regarding unlocking of data for innovation, bundles of rights should be chosen which reject notions of exclusivity and enable broad access and sharing of IoT data. The current DA proposal, which is dominated by the data holder-centric IP-like concept, will not achieve these objectives.