Machine-generated data: European Commission proposals for default licensing rules

Written on 20 Jan 2017

The European Commission has published a consultation paper which seeks to explore issues relating to access to non-personal and machine-generated data. The consultation forms part of the EU’s Digital Single Market strategy which seeks to establish modern, coherent rules to foster the free and secure flow of data in the EU.

The European data economy is expected to be worth in excess of €600B by 2020 and data is increasingly seen as a driver of economic progress and innovation and improvement in products and services. Machine-generated data (MGD) is raw data generated by machines or technology processes (such as the ever-growing Internet of Things) without active human intervention and has applications in sectors ranging from environment, energy and health to smart cities and intelligent transport.  It is recognised that access to MGD will be a key issue to harness the potential of this data. Accordingly the Commission has launched the consultation to explore ways to increase access to, and incentivise sharing of, MGD, so that maximum benefit and value can be gained from the insights it may yield in areas as diverse as traffic management and harvest optimisation.

The consultation will consider a suite of possible options including producing data-sharing guidance, promoting data identification and exchange technologies (e.g. blockchain), introducing default contract rules, establishing ‘public interest’ access rights and establishing a paid data access framework or licensing regime. This latter model would govern the licensing by data holders of their anonymised MGD to other parties on the basis of key, universal principles such as fair, reasonable and non-discriminatory (FRAND) terms, a model which is already established in other licensing contexts such as essential patents. The Commission recognises that any framework would need to take account of any industry-specific factors, as well as the relevant legitimate interests  of the data holder (which will be a significant to concern as their raw data will not benefit from intellectual property rights nor, as a matter of course, qualify for protection as a trade secret.)

The scope of the consultation also extends to issues of data portability of non-personal data and liability in relation to autonomous and connected technologies. Discussions on autonomous technologies may be particularly interesting to watch in light of the European Parliament’s pending debate regarding possible legal rights and responsibilities of artificial intelligence.

Although published alongside the e-Privacy Directive, the introduction of any framework or mechanism approved as a result of the consultation is unlikely to coincide with the implementation of the General Data Protection Regulation and the e-Privacy Directive, and indeed may not be finalised until after Brexit. However, given the UK Government’s recent emphasis on cooperation with Europe post-Brexit, it would seem logical that any MGD access model ultimately approved will also be adopted in the UK to ensure UK businesses and organisations can benefit from the considerable opportunities access to this data can provide.