Antoine and presentation on data economy and law

On 27 June 2022, Ms Lucie Antoine gave the already announced lecture on “Intellectual Property Rights and their Importance in the Data Economy” via Zoom. The former research assistant at the chair of Prof. Dr. Matthias Leistner, LL.M at LMU Munich and current trainee lawyer in the OLG district of Munich spoke both to some participants at Zoom and, as part of a hybrid format, to the participants of the lecture “Copyright”.

As a starting point, the lecture explained the framework conditions for creation and transfer, both in terms of incentives and the technical infrastructure (interoperability, APIs) as well as the legal infrastructure. The latter was then the subject of a more in-depth discussion.

It began with the legal classification of data and outlined the development of the legal handling of data from the creation of a separate intellectual property right to a focus on data access rights (e.g. Art. 20 GDPR, Art. 102 TFEU). However, possible intellectual property rights could also be cited against these.

According to Antoine, protection via intellectual property rights also poses various problems. In terms of copyright, protection as databases is a possibility, whereby a distinction must be made between database producer rights and database works, the latter being of secondary importance due to the requirements of the concept of work. However, database producer law also has uncertainties, especially in the case of machine-generated data, some of which are to be resolved by clarification through the planned Article 35 of the Data Act.

Patent law, on the other hand, does not play a major role in the data economy – at most, protection as a process product is conceivable.

However, the most practically relevant, because most flexible, protection is possible via the GeschGehG. Thanks to the broad relative concept of secrecy, this protection is also practicable for data transfers and can also provide reliable protection through its third-party effect. Currently, however, the problem is that in practice, the requirements for sufficient secrecy measures are almost unattainable.

As a result, the common practice of primarily using contract law to regulate rights to data is (still) the best solution to eliminate any uncertainties. However, new developments could shift the balance.

The lecture was followed by a question and answer session, which, among other things, dealt with further consequences of the Data Act.

We would like to thank Ms. Antoine for the exciting lecture on current problems in the field of intellectual property rights and the participants for their lively interest.