This Supplementary Paper is based on and complements the findings
detailed in the White Paper on "Data Ownership" of 1 January 2017
published by Bird & Bird on 6 February 2017. It also follows the
Communication on "Building a European Data Economy" and the
associated Staff Working Document published by the EU Commission on
10 January 2017. In its Communication, the EU Commission notably
suggests that Europe is not tapping into the potential of data for
business, research and innovation purposes. In this context, the EU
Commission launched a public consultation that runs until 26 April 2017.
It has the objective of collecting information on four main topics: (i) free
flow of data, (ii) data access and transfer, (iii) liability and (iv)
The above-mentioned White Paper and this Supplementary Paper focus
on data access and transfer.
Main findings of the White Paper
Our White Paper establishes that the existing legal framework in the EU
is not optimal and does not sufficiently facilitate operations on or
In the same vein, it is concluded that the cumulative implementation of
the current maze of different possibly applicable legislations is a
significant hurdle to the uptake of data analytics in the EU and is
creating legal uncertainty in this fast-growing market. It results from this
situation that those involved in the data value cycle may currently hold
back on data sharing initiatives and presently have no choice but to rely
on contractual arrangements to manage their rights in data.
While relying on contracts may seem to provide greater flexibility to the
contracting parties, it was found that this nevertheless comes with
In particular, the lack of harmonisation of contract law in the EU, but
also the limits of contractual arrangements towards third parties and the
issues related to the validity of data-related agreements, create a high
legal uncertainty that affects all data flows and the entire data value
chain at large.
It is therefore concluded that such situation is not sustainable in a data driven
economy, especially with the fast-increasing development and
adoption of data mining and analysis tools.
Against a background where the EU strives towards a data-driven
environment in which both citizens and companies can reap the benefits
of novel data technologies, but also against a background where the
current legal framework does not sufficiently tackle all the issues related
to data and where actors involved in the data value chain have no
certainty as to the ownership of the data they have gathered, created,
analysed, enriched or otherwise processed, we conclude that a more
solid and legally secure solution is needed.
The final chapter of the White Paper suggested the creation of a nonexclusive,
flexible and extensible ownership right in data(sets), with a
data traceability obligation as a safeguard. Such chapter discussed some
of the specificities of said right and obligation, their interaction with the
other existing rights in data, their incidence on civil law, and their
possible reflection in contractual arrangements.
This Supplementary Paper aims to further detail the main
features of the proposed new EU right in data. The paper is the result of intense discussions with scholars,
practitioners, industry representatives and policy makers in both
the EU and the United States.
View the Supplementary Paper >