The rapid expansion of the data economy raises serious questions about who “owns” data and what data “ownership” entails. In most jurisdictions, data that are kept confidential can be protected as confidential information. However, such data are vulnerable to exposure through hacking or leaking by third parties. In many instances, significant stores of data cannot be kept confidential, and protection must be sought elsewhere. Copyright law has long treated facts as being in the public domain, but will provide protection for compilations of facts that meet the threshold for “originality.” Such protection is considered to be “thin,” as it does not extend to the underlying facts, applying only to their original selection or arrangement. In the European Union, database rights offer a more robust protection for compilations of data, but they also fall short when it comes to protecting the facts that make up such compilations.
CIGI Paper No. 187