Opening Up Big Data for Sustainability: What Role for Database Rights in the Fourth Industrial Revolution?

Abstract

As hundreds of zettabytes of data are being generated by the bio-cyber-physical technologies of the Fourth Industrial Revolution (4IR), it has become untenable to argue that the law needs to introduce incentives to produce more data. Instead, as private corporations amass a wealth of data branded as ‘machine data’ to hide its value, we need incentives to open up enclosed data. The scarcity of resources is the main traditional justification for proprietary approaches. The 4IR heralds an age of abundance of data, which justifies – even calls for – a commons-inspired open data approach. 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. These are epitomised by the new Open Data Directive and the Data Governance Act, respectively. The former creates the conditions for better access to and re-use of public sector information in the belief that openness can benefit society at large. The latter invites citizens to embrace a philosophy of data altruism on the grounds that better data sharing can not only bring economic value, but also, and more significantly, ‘new ways for tackling societal challenges (e.g. climate change).’ Liberating data from its enclosures is pivotal to the achievement of the UN Sustainable Development Goals (SDG), as we will argue in the next section, but it is apparent that the real guardians of big data – the private corporations that are the key decision-makers in the 4IR – are not doing enough to facilitate the 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 any meaningful way. This is epitomised by the proposed AI Act. There, market surveillance authorities are granted access to the training, validation and testing datasets used by the provider of high-risk AI systems, and under certain conditions also to the relevant source code. This is a very limited right to access, which does not allow the re-use of this data and code for the common good, including for sustainability purposes. Crucially, this is consistent with the pro-proprietary stance of the AI Act summed up in the promise that ‘(t)he increased transparency obligations will also not disproportionately affect the right to protection of intellectual property (…) since they will be limited only to the minimum necessary information for individuals to exercise their right to an effective remedy and to the necessary transparency towards supervision and enforcement authorities.’ While there may be instances where Intellectual Property (IP) reasons may justify some limitations in the 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 it 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 the access to and re-use of data for the common good. With this in mind, this paper aims to answer the following overarching research question: what does a sustainable legal framework for the achievement of the sustainability goals look like in the 4IR? First, we will 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, will imagine how a sustainable framework for sustainable data governance may 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 yet-to-be-published Data Act.