IP Protection in the Data Economy: Getting the Balance Right on 13 Critical Issues

Bottom Line: Regulators should be concerned about stifling the large social value created by the gathering, analysis, and sharing of data. Innovation often depends on it. Moreover, if regulators began preventing companies from acquiring large amounts of data, it would delay or prevent many important technological advancements. 

Intellectual property (IP) systems are designed in large part to provide adequate incentives for creators and inventors to invest in the production of novel ideas and content—while at the same time encouraging beneficial diffusion of knowledge. For example, by publishing patent disclosures, other inventors can learn about innovations; and by limiting patent terms to 20 years, other innovators can learn about and use patented innovations. 

As we move ever deeper into the data-driven economy, policymakers should take into account the need to maintain such a balance when considering the relationship between intellectual property rights and data. 

While data is incredibly valuable, so too is sharing and combining. It is very easy to reduce total welfare by overestimating the threats of data gathering and dismissing the public benefits of new products that do not yet exist. Many data-rich companies already offer free or low-cost services that are extremely valuable to billions of people. These are the people whom regulators should be concerned about cutting off from the large social value created by the gathering, analysis, and sharing of data. Innovation often depends on it. 

Existing laws can deal with clear abuses. However, regulators can do a lot of damage by restricting the gathering and use of data in pursuit of preferences that are shared by only a minority of the population or by mandated forced access of data to supposedly level the playing field for companies that would prefer not to pay for data access. 

The emergence of the data economy has led to a growing debate about data rights, related to both intellectual property and privacy. Getting the debate over data and IP right is critical because regimes that tilt too far toward granting data rights run the risk of stifling needed data sharing, while regimes that tilt too far in the other direction risk limiting incentives for data collection and innovation.

There are 13 key policy issues that IP regulators should consider: 

1. Policy needs to get the balance right between incentives for collection, curation, and analysis and benefits from widespread use of data.
2. Data is non-rivalrous and often readily available.
3. Who has rights to data? 
4. Should individuals own “their” data?
5. Who should own private, non-PII data?
6. Forced sharing.
7. Competition policy and data ownership.
8. Forced access.
9. Text and data mining.
10. Database protection.
11. Government access to and use of data.
12. Conflicts between international regimes.
13. The political economy of IP and data.

Read the full report here.