Political Economy and Governance of the Ownership of Data

In times of digital platforms and Big Data, data have got substantive economic value. Nonetheless, data as such are an intangible asset and not regarded as property under European law. Property in data challenges traditional concepts of civil law which from Roman times has attributed property only to tangible goods (Rose 2003). As yet, data as can be protected via business or trade secrets, copyright, and other means but as such they are not regarded as property. However, the discussion of sui generis IP protection on data is in full swing. Datafication leads to data use in significant value-chains within and across platforms. With regard to access and exclusion rights, questions of data ownership arise. These are strongly associated with power relations between users, providers, and intermediaries. But: Who owns data? Can data be owned? And if so, who should be the legal owner? Property theory defines a bundle of rights which can also be distributed among different rights holders. While some scholars advocate property rights on data, others vehemently reject new intellectual property rights on data, as they assume that this would stifle innovation and be anti-competitive (Kerber 2016). Moreover, there is intense discussion whether privacy, data protection, and personality rights are complementary to economic rights over data or colliding with such rights (Hoeren 2014). Paradoxically, all possible data collectors and third party data users somehow acquire monetizable rights to data, but the sources from whom those data originate are generally excluded. Hence, Lanier (2015: 385f) proposed a micro-payment system for the data providers. Other authors strongly reject the commodification of data and advocate for data as a public good (Morozov 2014). This paper argues from a political science perspective. To explore both descriptive and normative questions of access and disposition rights over data, five models in which data are conceptualised as private goods, as club goods, as common goods, as public goods, and data governance via the fiduciary trust model will be discussed (see Heller 1998, Boyle 2003, Olson 1965, Ostrom 1990). The implications of these models for governance and regulation will be scrutinised. Thus, a conceptual study based on political economy approaches delineates different categories of goods as models for dealing with data and databases, and specifies such models with respect to data in the digital economy. Such categories will be useful for the development of a meta-level framework which accommodates and discerns the diversity of concerns, motives, interests, norms, and implications involved in the debate on data as economic assets. These questions are closely linked to current governance and regulation models both in the EU and on a global scale. They are therefore implicitly or explicitly part of national and regional digital agendas.