Noerr Digital Day – Experts warn against data ownership rights

Experts recommend remaining calm in the current debate on data ownership rights, and warn against overly hasty legislation. “In the age of the internet of things, data ownership would stymie innovation,” says Professor Peter Bräutigam. The Noerr partner is the moderator of today’s Noerr Digital Day, at which top lawyers and digitalisation specialists from well-known companies are discussing the legal challenges of digitalisation.

The warnings were expressed before the background of political initiatives to consider new legislation. According to its coalition agreement, the German federal government wishes to quickly clarify whether and how data ownership can be structured. Last year, the German Federal Ministry of Transport expressed a need for an ownership-right framework for mobility-based business models. This relates in particular to machine data that are generated in the context of the Internet of Things (IoT) whenever applications are used, for example in production machinery or autonomous vehicles.

“But data ownership rights would do anything but open the door to new applications and business models,” says Peter Bräutigam. Especially since, he continued, lawmakers are faced with the practically unresolvable dilemma of who the owner of the data should be. Take for example a connected vehicle. Should the data accumulated during a trip belong to the manufacturer or the owner? Or perhaps the driver, the rental agency or the leasing company? If one party is designated as the owner, the question immediately arises as to whether other parties have access or use rights. “Instead of promoting innovation, this would place new hurdles in the way of market access,” Bräutigam stated. He emphasised that free access to data is essential in the modern data and production economy.

Dr Thomas Thalhofer, co-head of Noerr’s  Digital Business practice group, recommends continuing to resolve issues surrounding the use and transfer of data by contract. “This permits flexible and practicable solutions and responds to a clear desire of businesses.” Last year, in cooperation with BusinessEurope, Noerr surveyed companies throughout Europe on legal issues involving digitalisation. A clear majority preferred contractual flexibility and rejected data ownership. Instead of giving thought to data ownership, lawmakers should observe the implementation of the EU General Data Protection Regulation, which, despite all criticism of its details, the expert Bräutigam considers a success. Since even U.S. group companies must comply with the new law, a level playing field will arise across Europe, according to Bräutigam. “We can’t let national overregulation ruin this advantage now.”