Is Privacy and Personal Data Set to Become the New Intellectual Property?

Abstract

A pressing concern today is whether the rationale underlying the protection of personal data is itself a meaningful foundation for according intellectual property (IP) rights in personal data to data subjects. In particular, are there particular technological attributes about the collection, use and processing of personal data on the Internet, and global access to that data, that provide a strong justification to extend IP rights to data subjects? A central issue in so determining is whether data subjects need the protection of such rights in a technological revolution in which they are increasingly exposed to the use and abuse of their personal data. A further question is how IP law can provide them with the requisite protection of their private space, or whether other means of protecting personal data, such as through general contract rights, render IP protections redundant, or at least, less necessary. This paper maintains that lawmakers often fail to distinguish between general property and IP protection of personal data; that IP protection encompasses important attributes of both property and contract law; and that laws that implement IP protection in light of its sui generis attributes are more fitting means of protecting personal data than the alternatives. The paper demonstrates that one of the benefits of providing IP rights in personal data goes some way to strengthening data subjects’ control and protection over their personal data and strengthening data protection law more generally. It also argues for greater harmonization of IP law across jurisdictions to ensure that the protection of personal data becomes more coherent and internationally sustainable.