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Title: Value of Information: Intellectual Property, Privacy and Big Data

Value of Information: Intellectual Property, Privacy and Big Data

by Maciej Barczewski (Volume editor)
©2018 Edited Collection 168 Pages
Law, Economics & Management
Series: Ius, Lex et Res Publica, Volume 7

Summary

The right information, at the right time, for the right user has become the most valuable currency of our times. Yet, traditional view on the use of information is being challenged: never before both businesses and users had to deal with the necessity of processing enormous amounts of data, often either privacy-sensitive or covered by intellectual property rights. The law tries to respond – both domestically and internationally – with new rules and novel applications of traditional rules. This book investigates these rules, their rationales, and consequences.

Table Of Contents

  • Cover
  • Title Page
  • Copyright Page
  • About the author
  • About the book
  • Citability of the eBook
  • Contents
  • List of Contributors
  • Lex et Res Publica
  • Protection of Non-Personal Data: A New Legal Framework for Data Ownership?
  • 1 Introduction
  • 2 Protection of industrial data under existing law
  • 2.1 Current Intellectual Property Schemes
  • 2.1.1 Copyright
  • 2.1.2 Sui generis database protection
  • 2.2 Relative protection
  • 2.2.1 Know-how protection
  • 2.2.2 Data protection
  • 2.3 Indirect protection
  • 2.4 General civil law concepts
  • 3 Proposals for a new property right in data
  • 4 Evaluation
  • 4.1 Fundamental rationale and problems
  • 4.2 The distinction between data and information
  • 4.3 Main problems
  • 4.3.1 Allocation problem
  • 4.3.2 Specification problem
  • 5 Perspectives
  • Big Data, Criminal Jurisdiction, and Transnational Crime: How the Long Arm of the Law Reaches across National Borders
  • 1 The substantive element of criminal jurisdiction
  • 1.1 Legislative jurisdiction under principles of customary international law
  • 1.1.1 Non-territorial principles of legislative jurisdiction
  • 1.1.2 The territorial principle of jurisdiction
  • 1.1.3 Limitations on the exercise of legislative jurisdiction
  • 1.2 Exercise of legislative jurisdiction solely under domestic law
  • 2 The procedural aspect of criminal jurisdiction
  • Identity Theft in the European Union: Do We Need Harmonization?
  • 1 Introduction
  • 2 Definition of identity theft
  • 3 Modus operandi of the perpetrators
  • 4 Reasons for criminalization
  • 5 Models of criminalization
  • 6 Criminalization of identity theft in chosen EU Member States
  • 7 To harmonize or not?
  • 8 Conclusions
  • Identity Theft in the United States: A Different Perspective?
  • 1 Definition
  • 2 Types of identity theft
  • 2.1 Financial identity theft
  • 2.2 Child identity theft
  • 2.3 Criminal identity theft
  • 2.4 Medical identity theft
  • 3 Protection and prevention
  • Wearable Technology: Selected Legal Challenges Related to Big Data Collection
  • 1 Introductory remarks
  • 2 Wearable technology – an attempt of a definition
  • 3 Wearable technology as a Big Data collection source
  • 4 Legal regulations concerning collection, analysis and Big Data processing by wearable technology devices in the EU and the United States
  • 5 Wearable technology in the workplace
  • 5.1 The risks and advantages of incorporating wearable technology into the work environment
  • 5.2 Legal regulations regarding Data Privacy in the EU and the US and wearable technology in the work environment
  • 6 Legal challenges relating to implementation of wearable technology in the medical environment
  • 6.1 Privacy and rights to data processed by medical wearable technology
  • 6.2 Product liability and safety of use
  • 6.3 Medical wearable technology – legal qualification
  • Selected Legal Regulations Concerning Biometrics and the Biometric Data
  • 1 Introduction
  • 2 Fundamental concepts of biometrics
  • 3 Biometric data protection in European and international law
  • 4 Legal regulations for biometric data in the United States and in the United Kingdom
  • 5 Legal regulations concerning the processing of biometric data in selected European countries
  • 6 Conclusions
  • Applicable Law and Jurisdiction in Data Protection Law: Values behind the Source of Data Protection
  • 1 Determination of applicable law pursuant to the EC Directive 95/46 on data protection
  • 2 Jurisdiction under Directive 95/46
  • 3 The EU General Data Protection Regulation (the GDPR)—revision of the rules on applicable law
  • 4 Jurisdictional rules contained in the GDPR
  • 5 Conclusions
  • Defending Our Data: The Need for Information We Do Not Have
  • 1 Technical background
  • 1.1 Software vulnerabilities
  • 1.2 Human vulnerabilities
  • 1.3 Network vulnerabilities
  • 2 Reasonableness standards
  • 2.1 The rationale
  • 2.2 The lack of data problem and its consequences
  • 3 Data breach notification laws
  • 4 Conclusion
  • Lex et Res Publica

List of Contributors

Maciej Barczewski

Dr hab., professor at the University of Gdańsk, Head of Centre for Intellectual Property Law

Edward Carter

Assistant, Illinois Attorney General

Aleksandra Czubek

Assistant professor at the University of Gdańsk, Centre for Intellectual Property Law

Dagmara Jaroszewska-Choraś

Assistant Professor of Law, Faculty of Administration and Social Sciences, Kazimierz Wielki University, Bydgoszcz

Arkadiusz Lach

Prof. dr hab. Arkadiusz Lach, Department of Criminal Procedure, Cybercrime Research Centre, Faculty of Law and Administration, Nicolaus Copernicus University in Torun, Poland

Joanna Marszałek

Assistant Professor, Centre for Intellectual Property Law, Faculty of Law and Administration, University of Gdańsk

Robert H. Sloan

Professor and Head, Department of Computer Science, University of Illinois at Chicago. Partially supported by National Science Foundation Grant No. DGE-1069311

Sebastian Sykuna

Dr hab., professor at the University of Gdańsk, Head of the Department of Human Rights and Legal Ethics

Richard Warner

Professor of Law, Chicago-Kent College of Law, Visiting Foreign Professor, University of Gdańsk, Poland

Prof. Dr. Andreas Wiebe

LL.M. (Virginia), Chair for Civil Law, Intellectual Property Law, Media Law and Information and Communications Technology Law at the Georg-August-University of Göttingen

Maciej Zejda

Research and teaching assistant, Faculty of Law and Administration, University of Gdańsk←7 | 8→←8 | 9→

Andreas Wiebe

Protection of Non-Personal Data: A New Legal Framework for Data Ownership?1

1Introduction

The establishment of data economy is high on the political agenda, and part of the Digital Single Market Strategy for Europe is the establishment of harmonized legal rules on data ownership.2 While the protection of personal data goes back to the sixties and seventies, the issue of protection of nonpersonal or industrial data has emerged only recently. With an enormous increase of digitization in all areas of the society and economy, the production, collection, and reusing of data is exploding in all fields. Big Data, the Internet of Things and services, robots, and an intensified vertical integration of companies with increased data networks as the backbone of production and services (“smart factory”)3 are the main trends. Within this environment, a huge bulk of data will be produced, aggregated, and distributed, including sensor and machine-generated data and machine-to-machine exchange of data. New business models will emerge (esp. for SME), and new and highly specialized services are expected.

The lack of a proper legal framework is often referred to as a potential impediment and the need for a free flow of data is stressed.4 In 2015, Commissioner Oettinger announced that the first step in the data strategy of the European Union (EU) would be to create a legal basis clarifying who owns data: “We need a virtual and digital law of property that includes data.”5←9 | 10→

While a large quantity of these data could still be considered to be person-related and thus regulated by the rules of data protection law, data are increasingly sensored or produced by humans or machines and do not qualify as personal data. Nevertheless, these data are essential for the economy in many ways and are being exchanged or traded as digital goods. Here, consumers and entrepreneurs are producers of data while their analysis is a business feature. If one looks at contracts or standard terms, what can be very often found is that “property rights” in such data are transferred and consequently these data are treated as if an intellectual property protection existed. In reality, however, there are no regulations exclusively pertaining to data as such. Therefore, it is barely surprising that at some point the issue came up of whether there is a need for creating an intellectual property right for nonpersonal data, or whether the existing legal framework is sufficient. The EU Commission now put this topic on the agenda and issued a Communication with an accompanying, thoroughly elaborated, staff document, which outlines some alternatives in approaching the topic.6 After a stakeholder process in the first half of 2017, an outcome is expected for 2018.

In the academic field, there has been some discussion in recent years about developing data protection rules into some kind of a property right. The issue here, however, is much broader and focuses on industrial data and a different balance of interests needed in this field.7 Hence, this issue will be discussed ←10 | 11→separately from the framework of data protection that culminated in the recent passing of the Data Protection Regulation.8

An instructive example that is already very real today is the networked car, which will eventually merge into an automated car. Already a car is equipped with a lot of sensors and an average of 80 steering devices.9 These collect data on the state of the car, the behavior of the driver, heartbeat, alcohol, traffic, and external conditions. Different parties could be interested in these data:

•Owner of the car

•User of the car (data input)

•Navigation and Telecommunications Services

•Insurances (“pay as you drive”)

•Internet Service Providers (distribution channel, data collection for advertising, growth potential € 80 bln. 2015-20)

•Government (traffic control, eCall, toll system, crime prevention)

Various conflicts between different stakeholders could be envisaged that include the issues of whether the owner of the car is entitled to prohibit the producer from collecting data in the car, or alternatively of whether he or she may allow a third party access against the will of the producer. The question is whether we can solve these conflicts under the existing regulations or whether we need a new kind of property right covering industrial data as such.

2Protection of industrial data under existing law

2.1Current Intellectual Property Schemes

First, we will have to examine existing intellectual property schemes in terms of the extent to which they could be applicable to data as such.

Details

Pages
168
Publication Year
2018
ISBN (PDF)
9783631760635
ISBN (ePUB)
9783631760642
ISBN (MOBI)
9783631760659
ISBN (Hardcover)
9783631750131
DOI
10.3726/b14335
Language
English
Publication date
2018 (December)
Keywords
Intellectual property Data protection Privacy Technology law Big data Identity theft
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2018., 167 pp.

Biographical notes

Maciej Barczewski (Volume editor)

Maciej Barczewski is Head of the Centre for Intellectual Property Law at the University of Gdańsk. He has previously taught at Chicago-Kent College of Law (US) and was a Visiting Researcher at the University of Oxford (UK). He has also served as an expert to the European Commission, the European Parliament and WIPO.

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Title: Value of Information: Intellectual Property, Privacy and Big Data