IPRS and Big Data: a proposal for a fair balance between businesses’ legitimate interests and data sharing in the light of the EU data act

Resumen

The European Commission launched in 2020 the European Strategy for Data that is aimed at boosting the sharing of data among businesses, but also among businesses and governments. This paper analyses how the Database Directive and the Trade Secrets Directive in their current state apply to Big Data and proposes a modification of the current legal framework to align with the objective of the data strategy also taking into account the Draft Proposal of the European Commission for the Data Act. An analysis of intellectual property justifications demonstrated that an exclusive property right is not justified and the that the database sui generis right should be abolished or at least not applied neither to raw data nor to derived data. However, it is necessary for businesses to maintain a de facto control over the data they produce to recoup the costs and profitably share data. This paper argues that this control can be maintained through secrecy and that is why it is submitted that the Trade Secrets Directive provides the right framework of protection, even if some aspects need clarification.