ABSTRACT
While scarcity of resources is the main traditional justification for proprietary approaches, the Fourth Industrial Revolution (4IR) heralds an age of abundance of data, which calls for a commons-inspired approach to data. Open data is no longer just the mantra of sparse communities of developers and designers. The EU has recently started to embrace open data in a number of recent legislative instruments and proposals to push public entities and citizens to open up their data for the common good. Liberating data from its enclosures is pivotal to achieving the UN Sustainable Development Goals (SDG), but the real guardians of big data – the private corporations that are the key decision-makers in the 4IR – are not doing enough to facilitate sharing and re-use of data in the public interest, including the pursuit of climate justice. The main instruments recently proposed to curb big tech power do not seem to embrace openness in a meaningful way.
While there may be instances where Intellectual Property (IP) reasons may justify some limitations in access to and re-use of big data held by corporations, it is our view that, in general, IP should not be used to hinder re-use of data to pursue the SDGs. As governments and citizens are being asked to open up data, now is the time for private companies to open up as well. As the fight for sustainability has never been more pressing and as transparency rises as one of the pillars of global digital constitutionalism, private power must do better and more to allow access to and re-use of data for the common good.
Against that backdrop, this paper aims to answer the following overarching research question: what does a sustainable legal framework for achieving sustainability goals look like in the 4IR? To answer it we will, first, illustrate the triple meaning of ‘data sustainability.’ Second, we will critically assess whether the database right (or ‘sui generis right’) can play a role in opening up corporate big data. Third, we will imagine what a sustainable framework for sustainable data governance might look like. This focus is justified by the fact that the Database Directive, often accused of creating an unjustified monopoly on data, is in the process of being reformed by the latest addition to the EU data governance framework: the Data Act. A step in the right direction, the Data Act does not provide the required legal certainty in the machine data space, thus potentially frustrating its objective to leverage data for the green and digital transitions.
Noto La Diega, Guido and Derclaye, Estelle, Opening Up Big Data for Sustainability: What Role for Database Rights in the Fourth Industrial Revolution? (November 2, 2023) in Ole-Andreas Rognstad, Taina Pihlajarinne and Jukka Mähönen (eds), Promoting Sustainable Innovation and the Circular Economy: Legal and Economic Aspects (Routledge 2024).
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