IP rights in data

The importance of data cannot be overstated. A report published in November 2013, by the Economist Intelligence Unit, stated that close to one in three global executives believe that data alone comprises 10–50 per cent of the total assets of their organisation, while one in 10 believed the figure to be more than 50 per cent. However, in legal terms, data is somewhat nebulous — it is more accurate to speak of the different kinds of rights that may arise ‘in relation to’ data, rather than simply of rights ‘in’ or ‘to’ data.

Copyright, database right, confidentiality and trademarks are all relevant when considering how data could be protected. Each right has its own separate body of law and has different requirements as to when the right subsists and when infringement occurs. The analytical complexity is compounded as a result of the growing importance of data to businesses, especially to global organisations, and the fact that intellectual property (IP) rights are primarily national rights, so the laws on each right tend to differ from country to country.

The layered nature of the analysis of IP rights relating to data, together with the unclear state of English law, means that data remains an area where commercial protection is often best ensured through robust contractual mechanisms to limitation use of the data in question, for example methods of use, geographical scope, industry sectors, creation of derivative works, internal/external use and any other constraints applicable to the data in question…

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