Intellectual Property law in the data economy: the problematic role of trade secrets and database rights for the emerging data access rights

The European Union (EU) has adopted a policy objective of fostering access to (non-personal) data. Law is one of the instruments towards this aim, particularly through the enactment of data access rights. The clash of intellectual property (IP) law with those rights is generally overlooked. This piece sheds light onto this crossroad.

In uncovering the interference of some IP rights with mandatory data access provisions, this article asks a series of questions in a much-needed conversation: what does data mean for the law? who ‘has’ the data, and who should get access to it? These questions have become increasingly consequential to our societies, and the law needs to tackle them comprehensively. Thus far, it has not. In this context, data-driven industries have quickly learned to operate in a landscape of  legal uncertainty, articulating claims of exclusivity akin to property entitlements on data on the basis of specific IP instruments such as trade secrets and sui generis database rights. Whether these claims are legitimate is the puzzle this piece aims at disentangling.