Legal Aspects Of Big Data: Part I – Legal Rights In Data

Author:Mr Richard Kemp
Profession:Kemp IT Law

When the technology is out there to enable you to know more about your customer than your competitors, how do you harness the tides of the Big Data ocean for competitive advantage?

Over the past twenty years, the leading edge in IT has moved on from hardware and software to the data they process.  As Big Data sets have grown exponentially in size, they have until recently outstripped the organisation's ability to harness their power - the software, knowledge discovery and best practices tools necessary to get the most from the data.  That's changing quickly as the enterprise gets to grips with its data assets and, looking over its shoulder at the competition, where it needs to get to.

The legal analysis and the legal team each have central roles in Big Data projects. In this Part I of our two-part blog on the legal aspects of Big Data, we'll be outlining how the legal analysis of data maps out in terms of rights and obligations.  Part II then applies this analysis to the legal team's role in Big Data projects.

The legal analytical model for Big Data has data rights and duties sandwiched between the 'legals' of hardware and software infrastructure and data architecture (software licensing, etc), and the operational aspects of data management and security (see diagram).

The start point for the analysis is that data is funny stuff in legal terms.  There are no rights in data - you can't steal it, and a recent case has confirmed that you can't hold a lien (a right entitling you to keep possession) over someone else's database. However, extensive rights and obligations arise in relation to data, and the distinction is worth bearing in mind.  These rights and duties arise through intellectual property (IP) rights, contract and regulation, and they are important: breach (even if inadvertent) can give rise to extensive damages and other remedies (IP rights and contract) and fines and other sanctions (breach of regulatory duty).

IP rights. The main IP rights in relation to data are copyright, database right and confidentiality. Copyright is a formal remedy that does what it says on the tin and stops unauthorised copying. It's of limited value where there are many ways of expressing the same thing, but where, as in the Big Data world, common message formats, interfaces, protocols and other standards prescribe that data has to be in a set form, copyright can be much more valuable.

Database right - another formal right protecting the investment in...

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