Editorial: A Christmas Gift
| Author | Séverine Dusollier |
| Position | Professor, Law School, SciencesPo Paris |
| Pages | 255-256 |
Séverine Dusollier
2017
255
4
Editorial
A Christmas Gift
by Séverine Dusollier, Professor, Law School, SciencesPo Paris.
© 2017 Séverine Dusollier
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Sé verine Dusollier, Editorial: A Christmas Gift , 8 (2017) JIPITEC 255 para 1.
1 What could be a better Christmas gift than an extra
issue of JIPITEC? Yes, you are not dreaming, you have
in hands (or on your screen), a fourth issue of your
favorite online journal, instead of the usual three per
year. What else could you wish for, than spending
the holidays curled up in your comfy armchair by the
re, with a cup of tea, coffee, or a glass of wine on the
table, with your clients, students, and colleagues out
of your mind until January, and nally some time to
read scholarly articles in your eld.
2
One of the biggest pieces (not of cake, that will come
later) of this new issue is no doubt Josef Drexl’s article
on ownership of data. Drexl is looking at the (once
announced, then possibly left aside - for the time
being at least) project of the European Commission
to adopt some legal protection for big data, in the
form of an exclusive property right or other form of
regulation, ensuring some control over data in order
to make data economy thrive (or so they say). The
EU ‘Free Flow of Data’ initiative was indeed ignited
by a Communication that planned to address the
issues of ownership and access to data. The specter of
commodication of data, which was already fought
against 20 years ago, when the sui generis right in
databases was discussed, is coming back. Although
the ‘Free Flow of Data’ draft Regulation published
a few weeks ago seems to exclude property rights,
it is not certain that it will not eventually return in
some form or another.
3
Drexl’s paper extensively reviews how the data
should be regulated, looking at the issues of data
ownership and access to data. The paper begins by
pondering whether the question of ownership should
be raised at all, and what the economic justication
would be to add more protection over data than what
is already provided by existing laws. Amongst the
existing forms of protection, the article analyses
sui generis protection in databases, trade secret
protection, patent right, unfair competition law, a
‘digital’ property right, or factual and contractual
protection. Then it turns to potential economic
justications for recognising data ownership, but has
difculty in nding any that would be convincing.
Therefore, Drexl argues against the creation of a new
system of data ownership. As to whether competition
law could enhance better access to data, a thorough
analysis of the EU competition case law reveals its
many shortcomings as regards the data economy,
due to its very dynamic nature. Instead the article
pleads for state intervention to promote access to
data, interoperability and portability, where public
interest considerations should play a key role.
4
After such an intense reading, allow yourself a break
to play with the new console your child received
from Santa. When she has humiliated you (despite
the fact that you were the best Mario Bros player
in your class as a teenager), it would be a good time
to come back and read the not-so-unrelated article
by Krzysztof Gartska on digitised memories as
personal and sensitive data, drawing on the ctional
setting of a video game entitled Remember Me,
that imagines a world in which human memories
can be digitised. Not only your online movements,
consumptions, communications, and interactions
are recorded and processed by commercial entities,
your memories could now be turned into assets too.
In this science-ction world (or perhaps a forecast
into the future), are such digitised memories to be
considered as personal data and what would that
mean? When memories can be stored, shared,
erased, or even hacked, issues of data processing
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