Ending Smart Data Enclosures: The European Approach to the Regulation of the Internet of Things between Access and Intellectual Property

Download This Paper Open PDF in Browser Add Paper to My Library Share: Permalink Using these links will ensure access to this page indefinitely Copy URL Ending Smart Data Enclosures: The European Approach to the Regulation of the Internet of Things between Access and Intellectual Property Forthcoming, Stacy-Ann Elvy and Nancy Kim (eds), The Cambridge Handbook on Emerging Issues at the Intersection of Commercial Law and Technology (Cambridge University Press 2023) 18 Pages Posted: 8 Nov 2022 See all articles by Guido Noto La DiegaGuido Noto La DiegaUniversity of Stirling Date Written: October 7, 2022 Abstract As Europe convincingly embraces quantum computing – with its potential to solve complex societal problems ranging from health through energy transition to climate justice – there can no longer be doubt that the big data generated by IoT systems must become accessible and smart data enclosures must end. While on the face of it the most recent legislative interventions go in the direction of more open, accessible, and re-usable data, they tend to balance (or even neutralise) that ethos with provisions that IoT big tech can use to retain and strenghten data enclosures.After becoming a global leader in the field of digital regulation with the General Data Protection Regulation (GDPR) – which prompted similar laws across the globe, from California through Turkey to China – the European Union (EU) is at it again with the Artificial Intelligence (AI) Act. The latter will ban certain practices (e.g. face recognition for law enforcement purposes) and impose human oversight, transparency, and other requirements on providers of high-risk AI systems (e.g. automated systems used in recruitment) . When it comes to the IoT, conversely, no ‘IoT Act’ is on the horizon. This makes it harder to get a clear sense of how this socio-technological phenomenon is being regulated in Europe. While in the future we expect to see IoT-related interventions in the fields of standard essential patents (SEPs), standards, product liability, and common European data spaces, there are already some instruments that aim to introduce tools to access otherwise locked-up smart data. In this chapter, I focus on the relevant provisions in the Open Data Directive, Data Governance Act, the Digital Markets Act, the Digital Services Act, and the AI Act, and see how data access and transparency obligations are balanced against IPRs. Previous research looked at how this balance is struck under the GDPR and the proposed Data Act. Those studies shed light on the emerging conflict between an approach to data governance informed by human rights, sustainability, and social justice – whereby citizens must be given data control, which includes the right to access, reuse, and port the data – and a market-oriented neoliberal one that regards data solely as a commodity to be appropriated and monetised. This paper tests whether those findings can be generalised, and in particular whether it can be said that in the European regulation of smart data the reasons of openness are prevailing over those of private property.Either the tension between data access and property is holistically addressed (including full data access by end-users, especially in the context of private enforcement), or we will not be able to overcome smart data enclosures, which in turn will have a detrimental effect in terms of potential for smart data to be used for the common good. Keywords: data access, right of access, duty of access, power to access, open data, data enclosures, data monopolies, intellectual property, IPRs, confidentiality, trade secrets, transparency, data governance, Internet of Things, IoT, common good JEL Classification: O34, O35, O36, K11, K42 Suggested Citation: Suggested Citation Noto La Diega, Guido, Ending Smart Data Enclosures: The European Approach to the Regulation of the Internet of Things between Access and Intellectual Property (October 7, 2022). Forthcoming, Stacy-Ann Elvy and Nancy Kim (eds), The Cambridge Handbook on Emerging Issues at the Intersection of Commercial Law and Technology (Cambridge University Press 2023), Available at SSRN: https://ssrn.com/abstract=4268125 Guido Noto La Diega (Contact Author) University of Stirling ( email ) Pathfoot BuildingStirling Law SchoolSTIRLING, Stirling FK9 4LAUnited Kingdom HOME PAGE: http://www.guidonotoladiega.com Download This Paper Open PDF in Browser Do you have a job opening that you would like to promote on SSRN? Place Job Opening Paper statistics Downloads 9 Abstract Views 33 PlumX Metrics Related eJournals Cyberspace Law eJournal Follow Cyberspace Law eJournal Subscribe to this fee journal for more curated articles on this topic FOLLOWERS 2,065 PAPERS 11,722 This Journal is curated by: Peter Swire at Georgia Institute of Technology - Scheller College of Business, Jonathan L. 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