Governing Data Trade in Intelligent Environments: A Taxonomy of Possible Regulatory Regimes Between Property and Access Rights

Companies have been analyzing data from their own customer interactions on a smaller scale for many years. But only recently, they understood the potential treasure trove of non-traditional and less structured data (such as machine-generated data and social media data) that can be mined both for internal marketing purposes and for licensing to third parties. From the business perspective, the protection of this data is needed to secure the significant economic investment that the “new data economy” can require. Otherwise, data holders may lack the incentives to share the data they own and control, because of the risk that non authorized users may “free ride” on their investment. Granting property rights is often suggested as a solution to overcome the incentive problem. In the case of data, while relying on contract freedom may seem the favourite solution, between those extremes a spectrum of possible “halfway” approaches has been proposed. They range from “quasi-property” or “semi-commons”, with a liability-like regime, to access rights, requiring to license extractions and reuse of data on FRAND terms.