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

Abstract

As Europe starts to embrace quantum computing, it becomes irrefutable that the big data generated by the Internet of Things (IoT) could and should be used to solve complex societal problems ranging from health through energy transition to climate justice. However, through a combination of IP, contracts, technological protections, and factual power, IoT companies are creating what we can call ‘smart data enclosures’. Data generated by and through smart devices is effectively appropriated by private business that prevents end-users and third parties from accessing and re-using it. These concerns were confirmed by the European Commission’s inquiry into the competition issues in the IoT, which evidenced how the leading players in the IoT market amass huge amounts of data about the users’ ‘Things’, enclose them, and prevent third parties from accessing them. Smart data enclosures are detrimental as open access to data is pivotal to common-good-oriented data uses e.g. for sustainability purposes. For example, open data is vital to measure the progress countries are making towards the UN Sustainable Development Goals (SDGs), as well as for the creation of data-driven IoT solutions to problems at the core of the SDGs (e.g. access to smartphone data can be used to predict the spread of infectious diseases under SDG 3). The World Economic Forum itself has underlined that, for the IoT to contribute to sustainability, partnerships between diverse stakeholders have to be established, and these have to include early agreements on data governance terms and the commitment to open up data to drive cross-industry solutions. Smart data enclosures exist despite the theoretical absence of an IPR covering data per se (with some partial exceptions e.g. database rights) and, crucially, despite the rise of data access mechanisms in EU data governance laws. The European Strategy for Data recognised that the limited availability of quality data is ‘holding the EU back from realising its potential in the data economy [and that] The value of data lies in its use and re-use’. The imperative to open up data is justified by the fact that, both in the public and in the private sector, ‘data is created by society’ and as such it ought to be used to tackle the most pressing societal challenges of our time. Building on this mandate, the EU has been introducing a number of data governance laws that purport to improve access to data, most notably the Data Governance Act, the Digital Markets Act, the Digital Services Act, the proposed Data Act, and the proposed AI Act. All of these instruments contain some proviso or caveat to protect the interest of the IP holders. Against this backdrop, this paper will critically evaluate how data access and IP are balanced in recent EU data governance laws, and if this balancing exercise risks effectively sterilising the ethos of openness that professedly informs those laws.