The EU data strategy: a complex attempt to unlock data

Since the European Commission proposed its European strategy for data on 19 February 2020 (followed by the European Parliament’s resolution “European strategy for data”), the Commission has issued the Data Governance Act (DGA) and the Data Act (DA) aiming at creating a single market for data and establishing European leadership in the global data economy. 

The starting point for these interesting legislative initiatives is the undisputed importance of data in the digital economy. The Internet of Things (i.e., connected objects such as fitness trackers, windmills or electric vehicles) is producing tremendous quantities of data, which are useful to the person or company producing the data but also to service providers or public authorities.

The DGA and DA cannot be read without reference to European ambitions in the field of artificial intelligence – through the attempt to start regulating AI with the AI Act - and the promise that AI-technologies hold to solve important challenges in fundamental sectors such as health care, mobility and energy.  For example, researchers working on rare diseases may not have access to significant data sets in their EU Member State to train AI-solutions but if the data of hospitals and research institutions from all over Europe become available, it is hoped that their efforts and the investment of public means become more efficient. 

In order to spur “responsible” innovation, the European Commission proposes two acts that should (i) give individuals, research institutions, companies - In particular small and medium-sized enterprises - and public authorities access to certain data and (ii) harmonise the framework for use and re-use.

In a series of blog posts, we will examine the contours of the new data regulations and their data sharing aspects, without aspiring to be exhaustive given the young age of the regulations.

“Data”

For the first time, the concept of “data” is defined in a legislative act:  data is “any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audio-visual recording” (art. 2(1) DGA, art. 2(1) DA). 

The definition is broad: it covers both personal and non-personal data, generated in the public or private sector, regardless of the data’s meaning, content or function.  Telecom-carried communications or an audio-visual productions viewed through a streaming service are “data” within the meaning of this definition.

Importantly, the Data Governance Act and the Data Act are not all-encompassing regulations:  other regulations (such as in the field personal data protection or intellectual property) will continue to apply.

Complex legislative landscape

This creates a complex legislative landscape, which will be difficult to navigate for undertakings, public sector bodies and individuals alike.

In order to determine which rules are applicable, the information under consideration should be classified along two axes:  it should be verified whether the information contains personal data, non-personal data or a mixed dataset and whether it is public sector information or private sector information. The access to and reuse of the data will be governed by different legal instruments, as the following figure shows:

Moreover, additional restrictions may result from the protection of the “data” under intellectual property rights (such as copyright, database rights or other related rights) or trade secrets. 

The Data Governance Act and the Data Act are thus the latest additions to a regulation-heavy field, which makes it delicate for undertakings, individuals and public sector bodies to understand their rights and obligations as “data subjects”, “data holders” or “data users”.  It remains to be seen whether the two legislative proposals, the Data Governance Act and the Data Act, provide sufficient legal certainty to reassure the actors and incentivize them to share their data.

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Auteur: 

Sari Depreeuw, Partner, sdepreeuw@crowell.com, +32.2.282.18.49