Is Big Data a game changer for IP rights?
The need to guarantee the free flow of information in a Big Data economy forces us to re-think Intellectual Property Rights and find an appropriate balance between competition, innovation, privacy and incentives.
In recent times, it has been considered that Big Data is the new oil and that it will drastically change global economy. But first, we must ask ourselves: what is Big Data? Big Data, according to some sources, is the collection, analysis and monetization of all sorts of information that will allow commercial and non-commercial actors to become more efficient in their performance. For example, Daniel Berman, Senior Assistant of the General Manager of the Maccabi Health Fund, considers that Big Data will change the way Medicine and health is being practiced today, allowing for improved outcomes to be obtained through smart decisions and reducing costs. This means that in the pharmaceutical sector, we can expect specialized treatments for every patient after mining their data. Where the data corresponds to millions of persons with the same disease, such practice can contribute to create a better health system. Hence, the use of Big Data in certain sectors or industries will have a major impact, considering that it could help eradicating some of the diseases that have caused severe damage to humanity, like cancer. Consequently, a Big Data economy will definitely improve human activities, making them more efficient, beneficial and less costly.
Competition, Privacy and Health
Nonetheless, there are some voices that have warned us about the negative effects of this new industrial revolution and the data-rich markets. In this regard, Viktor Mayer-Schönberger, professor of Internet Governance and Regulation at the Oxford Internet Institute of the University of Oxford, stated during a lecture held at Maastricht University that the concentration of the Big Data market into a few hands could not just provoke a market failure, but also would expose us to the informational power of dominant data companies. Under this point of view, the economy would not be the only thing in danger by data-rich economies, but also our democracy. One of the solutions proposed to avoid market failure is to establish a “data tax”, where data-dominant companies would need to share part of the information with smaller firms. Moreover, the EU has recognized that Big Data could jeopardize the protection of the fundamental right to privacy, reason why the General Data Protection Regulation (GDPR) was adopted on April 27, 2016. Recitals 1, 2 and 4 of this Regulation provide a general panorama of the objectives sought by the EU, the most important being the protection of persons against the processing of personal data as a fundamental right and the balance of the same against other fundamental rights. Finally, knowing the benefits that Big Data could bring to health, efforts must be made that such benefits are enjoyed by everybody and not just by those with a favorable economic position.
Big Data and IP
Having in mind the aforementioned, it is fair to say that there is a public interest to guarantee a free flow of information knowing that, in a Big Data economy and world, information is crucial to reach new optimal solutions and boost competition to avoid market failure. Under such circumstances, legislators, policy makers, economists, lawyers and civil society should analyze and discuss thoroughly whether intellectual property rights, as they are regulated at present, allow or impede the free flow of information and whether they could facilitate the creation of Super Data Companies that could jeopardize our economy and democracy. For instance, a deep look must be taken into the sui generis right for databases as it grants rights for the maker of a database (i.e. Rich Data companies) to prevent others from extracting and re-utilizing the whole or a substantial part of the contents of the database. Such sui generis right provides a more enhanced protection as compared to other IPRs such as patents and copyrights: it faces less exceptions and limitations and the 15 years term of protection can be extended through substantial changes made to the database. This means that makers of databases could have monopoly rights over the databases they create ad perpetuam, which is in stark contrast with the rest of the relevant IPRs. Furthermore, the current EU’s Directive does not foresee a compulsory license regime that would allow third parties to use substantial information of the database in special cases that could have a general negative effect, such as health or economic ones. Last, it would be hard to establish a “data tax” while recognizing monopoly rights over information contained in databases.
The Fourth Industrial Revolution forces us to re-think the rationales that underpin Intellectual Property Rights, in order to make proper modifications to seek a balance between competition, innovation, privacy and incentives.
|Written by Guillermo Mier y Concha, More blogs on Law Blogs Maastricht|