Data are often referred to as the new gold. However, from a legal standpoint, data are not adequately regulated. Data do not have a place in current property law, which traditionally regulates the control of valuable assets and refers only to material objects and property rights. As a result, data have no owner, nor can they function as the object of a lien or attachment. According to Koen Swinnen, Professor of Private Law and Public and Private Interests at Erasmus School of Law, data are currently in a legal vacuum, leading to various problems. During his inaugural lecture, Swinnen discusses the consequences of this vacuum and considers whether and how property law can be connected to data and what property law could potentially offer to data.
Property law regulates the relationships between individuals and goods: it determines who owns a good, what rights are associated with ownership, how something can be used as collateral, and how a good can be seized. In this context, goods refer to tangible objects, and property rights include shares and claims. Data are intangible and do not represent a property right. Therefore, data are not covered by property law. In this situation, data do not have an owner, it is unclear who controls data, and data cannot be used as collateral or seized (for example, by the government).
‘De facto’ ownership of data
In practice, the lack of regulation leads to a kind of quasi-ownership, as explained by Swinnen: “This legal vacuum practically means that data remain with the person who happens to have possession of them, even if that is not necessarily the party that has the most right to that data. In the literature, therefore, the current ownership situation of data is often referred to as ‘de facto ownership’.” According to Swinnen, this creates a world where the rule of the strongest applies, or laws like “first come, first served.”
Contractual emergency solution
The lack of property law rules for data is often addressed through contractual agreements; Swinnen continues: “It has become common practice to make agreements in the contract about who will own the data, and terms like ‘ownership’ and ‘owner’ are not avoided.” Does contract law thus solve the shortcomings of property law? According to Swinnen, it falls short: “Firstly, because contractual agreements only apply between the contracting parties due to the principle of contractual relativity, meaning that third parties, such as creditors or data custodians, are not bound by it. Secondly, a contractual right to receive data is weaker than the ownership claim of an owner, which is particularly important in case of bankruptcy.”
The inseparable connection between property and law
Can property law and data be connected with each other to fill this vacuum? To answer that question, Swinnen first discusses the special relationship between (property) rights and goods: “Property law focuses on rights to goods, where rights and goods are inseparably connected: if there is no good, there is no right, hence no ownership or mortgage right.” In other words, rights are always connected to the underlying object. In the case of data, the question is what an ownership right would be based on, so the object of the property right could be.
“To provide the object of property rights, the object must be sufficiently independent, meaning it must not be part of a larger unit,” so you can not own a table leg but can own the table as a whole. “Additionally, the object of property rights must be identifiable. This requirement means that a rights holder must be able to identify the object of their right. They must be able to delineate it from everything that does not fall under it.”
The question is whether something can be designed in the world of data that is sufficiently distinguishable and independent. According to Swinnen, the search for something at the level of data falls to IT and other specialists rather than only jurists.
What does property law have to offer data?
“First and foremost, property law offers data a compact yet comprehensive set of rules and principles,” says Swinnen. “By compact, I mean that property law consists of a relatively small number of building blocks and is therefore easy to grasp. However, these building blocks are multifunctional and can be combined in various ways, ultimately covering many concrete situations.” By connecting data with property law, many issues that need to be addressed to fill the legal vacuum around data in property law would be resolved.
Apart from this legal basis, property law would (among other things) make data capable of being pledged, attached, inheritable and reclaimed. “When we bring all this together, we must conclude that property law has much to offer data: the aforementioned property problems are solved, and thanks to the comprehensiveness of property law, many things that need to be addressed are resolved with just one push of a button. However, property law is not a ready-made legal regime for data. In the intermediate link between data and property law, several things will still need to be established and documented”, says Swinnen.
- Professor