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70 Hastings L.J. 1 (2018-2019)

handle is hein.journals/hastlj70 and id is 1 raw text is: 


                             No One Owns Data

                                 LOTHAR DETERMANN

Businesses, policy makers, and scholars are calling for property rights in data. They currently
focus on the vast amounts of data generated by connected cars, industrial machines, artificial
intelligence, toys and other devices on the Internet of Things (IoT). This data is personal to
numerous parties who are associated with the connected device, and there are many others are
also interested in this data. Various parties are actively staking their claims to data, as they are
mining the fuel of the digital economy.

Stakeholders in digital markets often frame claims, negotiations and controversies regarding
data access as one of ownership. Businesses regularly assert and demand that they own data.
Individual data subjects also assume that they own data about themselves. Policy makers and
scholars focus on how to redistribute ownership rights to data. Yet, upon closer review, it is very
questionable whether data is or should be subject to any property rights. This Article
unambiguously answers the question in the negative, both with respect to existing law andfuture
lawmaking in the United States and the European Union, jurisdictions with notably divergent
attitudes to privacy, property and individualfreedoms.

Data as such, that is, the content of information, exists conceptually separatefrom works of
authorship and databases (which can be subject to intellectual property rights), physical
embodiments of information (data on a computer chip, which can be subject to personal property
rights) and physical objects or intangible items to which information relates (a dangerous
malfunctioning vehicle to which the warnings on road markings or a computer chip relate).
Lawmakers have granted property rights to different persons regarding works of authorship,
databases, land, and chattels to incentivize investments and improvements in such items.
However, this purpose does not exist with respect to data.

Individual persons, businesses, governments and the public at large have different interests in
data and access restrictions. These interests are protected by an intricate net of existing laws,
which deliberately refrain from granting property rights in data. Indeed, new property rights in
data are not suited to promote better privacy or more innovation or technological advances, but
would more likely suffocate free speech, information freedom, science and technological
progress. The rationales for propertizing data are thus not compelling and are outweighed by the
rationales for keeping the data open.  No new property rights need to be createdfor data.

      Lothar Determann teaches computer, internet and data privacy law at Freie Universitat Berlin,
University of California, Berkeley School of Law, and Hastings College of the Law, San Francisco, and he
practices technology law as a partner at Baker McKenzie LLP in Palo Alto. Opinions expressed in this article
are those of the Author, and not of his firm, clients or others. The Author is grateful for valuable input, research
and edits by Yoon Chae, Thomas Blickwedel, Paloma Pietsch and Shenura Jeevaratnam, as well as additional
suggestions from Prof Eric Goldman, Santa Clara University School of Law, and Tony Bedel.

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