Who owns data?

• Data will be crucial to IP strategies, but there will be questions about ownership and control
• Much more attention will be paid to protecting and enforcing trade secrets
• Other tools will become more important, such as copyright, database rights and data exclusivity

The fuel that will power the 4IR will be data – and lots of it. Amassing, analysing and acting on data will be key to ensuring an advantage of competitors, and good data will be one of the most important assets to have. But, as one in-house counsel succinctly asks: “Who owns data? What is the legal tool to protect data?” That may be a question that both IP owners and policy makers will have to grapple with in the next few years. It is more than just being about privacy and consent, and instead concerns the value of data that is collected – particularly in situations where that data’s value is realised only when it is shared. For example, take all the data constantly being generated by an aircraft engine in flight: does it belong to the engine or aircraft manufacturer, the airline, an independent safety agency or a combination of these? Similar questions will arise over the data generated by autonomous vehicles (does it belong to the driver, car maker or lessor, or the highway agency?), medical devices (the patient, doctor, hospital or manufacturer?) and almost every other connected product.

The answer almost certainly does not involve patents. But it may involve other means of protecting intangible assets, such as trade secrets and copyright. Trade secrets laws in particular are likely to be relevant where data is stored in the Cloud and can easily be downloaded, and where workers are likely to be moving between companies. As the writer Charles Duhigg explains in a recent New Yorker article on the litigation between Waymo and Uber (“Stop, Thief”): “Almost anything can be claimed as a trade secret: a manufacturing technique, a recipe, a bureaucratic process. The fact that trade secrets are hard to define breeds paranoia.”

Many in-house patent counsel expect to be, as one put it, involved in “more diligent efforts and more focused attention on trade secrets” in terms of both developing policies to protect secrets and in deciding what action is appropriate to take when there is a breach – a particularly challenging decision given the risk of disclosing valuable information once litigation is started. Recent legislation in the United States and the European Union has particularly focused minds. Thyssenkrupp, for instance, is an example of a company that has put in place sophisticated procedures in preparation for the implementation of the EU Trade Secrets Directive, including a Strategic Trade Secrets Council.

Aside from trade secrets, other means may also become more important to protect the innovation that patents cannot reach. These include:

• Copyright – software will be at the heart of innovation, so patent practitioners will need to understand the scope and limits of it, particularly when using software under one of the many open source licences.
• Sui generis rights such as the EU database right – this protects a substantial investment in “obtaining, verification or presentation” of the contents of a database.
• Data exclusivity in the life sciences sector – bemoaning the lack of protection in the United States compared to Europe, one US lawyer laments: “Data exclusivity is the 500-pound gorilla in the room.” And at least one in-house counsel in big pharma believes: “Give me consistent data exclusivity protection around the world and I would happily give up all our patents tomorrow.”

As one in-house patent counsel summed it up: “Intellectual property is going to be a lot more about software and AI, and Big Data – shading into personal privacy and GDPR [the EU General Data Protection Regulation]. An IP expert will have to be pretty good on data.”