8. Meeting legal/regulatory, ethical and sensitive data obligations

A few years ago it was explained to me by a Swiss lawyer that “you cannot own data, just as you cannot own [your] children”. You can only be a guardian, caring for it/them. The following below is the longer explanation of the legal basis that was given to me. I think it is useful to replay it here. I think the lawyer concerned would probably be happy that I share their explanation.

“Ownership does refer to tangible goods. Data are intangible (or immaterial) goods. Property in intangible goods is possible, if the object is a copyrightable work, a patented invention etc., within the EU (but not in the rest of the world!) also if the object is a “database” (which refers to a “database, which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” [art. 6 of directive 96/9]). A collection of data can become a copyrightable work, if it is original by the way of selection of items or the presentation. If these conditions are met, the data collection is an IPR-protected object, if not, it is not an object of legal regulation. Even in the first case, the collection is still not a material good, but an immaterial one, and it follows the property rules of copyright, database protection etc., which are very different from property rules for material goods. In these cases, you can speak of “copyright ownership”, “patent ownership”, “database ownership”, but never of “data ownership”, because the protection of copyright refers to the work, but not to the content, the protection of patents refer to the commercial re-use but not to the procedures, the EU-database protection refers to the database as a whole, but not to the single data. I’m aware of the fact, that this may sound somehow far from practice, but these are basic concepts of intellectual property rights and they have a huge impact on the operationality of IPRs. Life would be extremely complicated, when IPR would be the same as ownership in material goods.”

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