I do not disagree with you (actually in the US we use the term intangible property instead of immaterial good). My assertions only try to reflect practical reasoning in order to have consensus on a public policy. After hearing our colleagues in July 2015, I backed off from insisting that data cannot be owned nor IPRed.
The problem is that the judges interpret that, when they enforce the contract, is it not because there is a contract per se, but also because the breach of the contract amounted to a deprivation of some thing that was within the realm of power of the seller (property ? good? intangible? immaterial?). It does not matter hpw you call it. You cannot sell love (sorry, neither goodwill, you cannot sell persons…) but you can sell data. And, … what can be sold through a valid contract under the law? Whatever it is, iI you can sell it, it is because it is either some sort of good or some sort of servce (or result of a service)… Call it as you want, but is not extra commertium.
There are so many people that think this way and behave so that whatever it is, they think that it is equivalent to some sort of property, that if we base the guidelines upon the simple and straightforward assertion that data cannot be owned nor IPRed in any case (and as such it can never be an object of a contract) [this is what my wording said in the text for principle one until July 2015] … we are so counterintuitive (e,g, Bernard came with multiple examples) that nobody will follow, … So if 99,99999% of people who have data within their power of disposal think that the data is theirs and the law backs them if they act in such a way.., and there is evidence that the law backs them through different approaches which are the core content of what is being called Data Law, and area of the law which has seen in the recent years the creation of specialized law firms…… … .
Is it not better not to deny intuitive reality but look instead for approaches that set aside this conflict? i.e focus on data produced through public funding (where the funder can claim that the data ¡s within its power of disposal and can decide what to do with it such as imposing open access), without considering other type of data where this debate is going on?
My main point is that Hoeren is not entirely wrong, neither his reasoning new… .. do you want some other articles (based on case law) where authors defend the same idea? But, that does not mean that he is right either.
So let us not talk about ownership , but there is no need to base this decision on an absolute denial that data can
perhaps be owned (neither on the assertion that it cannot ever be owned nor IPred).
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De: egloff_bader=***@***.***-groups.org [egloff_bader=***@***.***-groups.org] En nombre de Willi Egloff [***@***.***]
Enviado el: martes, 12 de abril de 2016 23:43
Para: ***@***.***-groups.org
Asunto: Re: [rda-legalinterop-ig] RE: [rda-legalinterop-ig] RE: [rda-legalinterop-ig] Fwd: data…
Dear Enrique
Both your conclusions are right. But your arguments concern a completely different question. I was talking about “data” as “inmaterial good”. You are talking about “data” as object of contracts. In my understanding, this are two completely different issues.
You are right: We can sell data, we can buy data, we can keep data secret, we can publish data. Of course, we can. Nothing of it is illegal. But does it mean that data is an inmaterial good? Not at all. We can buy reputation, we can buy goodwill, we can buy feelings, we can even buy love. Nothing of that is illegal. Does it mean that goodwill, feelings, love are inmaterial goods? Not at all.
Please read my statement: “Inmaterial goods” are non-physically existing objects that have been qualified as goods by law. Copyrightable works are such goods, data are not. That’s all. It does not say in any form that buying or selling data is illegal. It is not. But this does not change the fact that there is no legislation that qualifies data as goods.
The difference I’m talking about is the difference between absolute rights and relative rights. I can assert absolute rights against everybody. But I can assert relative rights only in the relation to a contractual party or on some other obligational ground. I can sue anybody who has used my copyrightable work, because it is an inmaterial good and I have an absolute right in it. I cannot sue somebody who has used “my data”, if it is not on the basis of a contract that he or she has violated, because “data” is not an inmaterial good and I have no absolute right in it. That was the only point I wanted to remind.
In our group, we are dealing with legal interoperability. We are looking for solutions that allow the access and reuse of data in situations where there is no contract. Between two or more parties that are linked by contract, you do not need legal interoperability. In these cases, it is always the contract that says what is allowed and what is not. The only exception are overriding legal rules.
That’s exactly why we recommend to avoid contracts that restrict access and reuse of data. You can conclude such contracts, but it hampers legal interoperability. That’s why you should not do it, if you can avoid it. I thought that this was one of the red lines in our guidelines. Was I wrong?
Best regards,
Willi
Am 12.04.2016 um 08:34 schrieb enriquealonso:
Afer Willi´s statements…
I still maintain that our conclusion/consensus was that:
A.- We should not use ownership in the context of our guidelines, but
B.- We should not assert either that data is by essence a fact that cannot be IPRed.
I agree with you Willi, that is the law but I have been convinced that that “should” be the law. De facto reality runs counter to it in Business Data law.
If a company A sells to company B its collected data and includes a clause that obliges B not to allow any third party C to access it and to acknowledge that it (B) has been authorized only to use A´s data for X use or under Y conditions “because A is the owner and has its IPRâ€